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Right To Choose Which Photographs You Create:

A commenter asks, "how many people would (dare to) take the photographer's side here if she refused to photograph a mixed-race couple?" I should hope that virtually all of those who support Elaine Huguenin's Free Speech Clause rights would support that hypothetical photographer's constitutional rights, too. I certainly would, just as I support the constitutional rights of many people whose views I condemn.

The premise of the argument I've made is that the government may not force you to create speech that you don't want to create, whether that's an article, a press release, a photograph, or a painting. You can be a racist, anti-same-sex-marriage, a devout Catholic who doesn't want to create works celebrating a marriage of divorced people, an orthodox Jew who doesn't want to create works celebrating a marriage of Jews and non-Jews, or whatever else. It doesn't matter.

The desire to prevent race discrimination should no more dissolve your right to be free from being compelled to speak (here, to create an artistic work) than it should dissolve the right to express bigoted views, to choose members of a racist political organization, or to select ministers (or church members) based on any criteria a church pleases. And if that means that writers and photographers can't be legally barred from choosing their subjects based on race, that's just an implication of the basic First Amendment principle of the speaker's right to choose what to say.

There should be nothing particularly daring about this position.

Brian Macker (mail) (www):
Sorry but this is not about free speech. Taking wedding photographs is as much about art as painting a house. You are not hired to give your interpretation of the wedding.

Your skills are only required to get the job done correctly. If you failed to take pictures of the bride and groom, then only took pictures of the materialistic trappings of the wedding, as an expression of your feelings that "Marriage is a fraud" then you'd soon find yourself in a lawsuit.

If my wedding photos all came out dark and out of focus then I certainly wouldn't accept the excuse that "as a artist" the photographer was "voicing an opinion".

Since you think this is about art, then do you think a photographer who's a racist could agree to take wedding pictures at a mixed race wedding then submit photos which cropped out the groom? That's certainly an expression of an artistic opinion. However the photographer isn't being hired for such opinions.

So Eugene you are just flat out wrong on this.
4.10.2008 3:05am
Fub:
There should be nothing particularly daring about this position.
Seems obvious enough to me, but apparently not to some. What amazes me is the number who do take issue with it one way or another.
4.10.2008 3:05am
CDU (mail) (www):
Sorry but this is not about free speech. Taking wedding photographs is as much about art as painting a house.


It doesn't have to be "art" to be speech. It just has to be expressive. The Supreme Court has ruled that setting a flag on fire is expressive, surely taking wedding photos qualifies.
4.10.2008 3:13am
John R. Mayne (mail):
I think the writing parallel our host writes about is clearly protected.

The wedding photographer issue isn't quite as clear, but I view Professor Volokh as having the superior argument; I disagree with Brian Macker that there's no art to wedding photography. Good wedding photography has a substantial artistic component.

But where is that line, exactly? How about a wedding cake - certainly, a work of art of some type, but also a food product. Would that operator be protected, or could they be compelled to be non-discriminatory?

If our cake maker (and decorator) is protected, how about a sushi maker? Presentation counts, you know. What about my burger? It comes in a decorative wrapper.

At the ends, the situation seems fairly easy to me, but the muddled middle.... not so much.

--JRM
4.10.2008 3:17am
Random1L:
Brian Macker, all of your examples deal with the performance of a preexisting contract to photograph a wedding. The issue here is whether the photographer had a valid right to refuse to enter into such a contract to begin with. Regardless of where you come out on the merits, I think it's an important distinction.
4.10.2008 3:18am
Asher Steinberg (mail):
Sorry but this is not about free speech. Taking wedding photographs is as much about art as painting a house. You are not hired to give your interpretation of the wedding.

This is just not true! See here for instance, or look at this (schlocky) wedding picture. Are you telling me that this picture isn't an artistic interpretation of events? Do you realize that many wedding photographs are staged? Who's doing the staging? I'll answer my own question - the photographer. Don't you think he has an interpretation, certain values, certain messages and feelings, that he's trying to bring out when he gives his subjects directions? This idea that wedding photography isn't expression is absurd. You might as well say that Obama's professional campaign photographers and videographers are neutrally "documenting" Obama's speeches, that all they do is click their shutters and make sure he's in focus.
4.10.2008 3:19am
Brett:
Quite apart from the First Amendment ramifications of this, I can't help but wonder what the lesbian couple hoped to gain by pursuing it.

I mean, sure -- they got their pound of flesh. $6600, though some of that is evidently compensation for fees incurred in making the complaint, and some bureaucrat wagging the Finger Of Disapproval(tm) at Huguenin and saying, "Bad monkey!"

Meanwhile:

(1) The couple still needs a wedding photographer, and their pool of potentials is on notice that the couple's inclined to complain to state authorities over grievances rather than working things out privately.

(2) Backlash against the law, with a noted First Amendment scholar noodling over its possible constitutional infirmities, and a fair number of other people expressing disgust at the situation.

(3) Huguenin and others like her now have a real beef against GLBT folks to nurse, and take away that it's better to lie -- "Oh, I'm sorry, I'm already booked that day," or, "Gee, I'd love to help you, but I'm trying to cut down on the number of weddings I do per season because they're so exhausting, and I'm already past my limit," -- than forthrightly and politely inform customers what services they will and will not do.

My Professional Responsibility professor has impressed upon us, as aspiring lawyers, that one of the services we should provide to clients is to ask them what they really want -- what they hope to gain by invoking legal processes, and whether their goals might be better served by not doing so. I'm not sure the lesbian couple's lawyer gave them good advice, in this regard.
4.10.2008 3:43am
UW2L:
The daring part is that it's a lot harder to defend your position consistently when your position applies to unpopular viewpoints and causes célèbres equally. People tend to impute the viewpoints you defend to you yourself. (I'm sure I'm guilty of this in my last comment.) Though, if you're thin-skinned enough to be afraid of that, or of your angry comment being made the subject of a post thousands of people will read, Internet debate is not for you.

And of course maintaining consistency is not just difficult because other people might impute an unpopular viewpoint to you; it's also hard to maintain consistency when you realize it results in an outcome you personally don't like. In this way many high-minded principles suffer the death of a thousand cuts when they turn out to be uncomfortable at times in practice, and it's clear that the First Amendment is one such principle.

So in a way I think it is definitely daring to be consistent when it would be so much easier to be inconsistent. People's beef with the ACLU here was that the ACLU purports to be consistent, defending the KKK and whoever, but the purported NM photographer involvement and actual Seattle photographer involvement are apparently inconsistent.

This is a case of a private business owner refusing to contract for providing a service and a good that happen to involve art. So the nub of the issue is whether the New Mexico public accommodation law goes too far in its reach to include such services as artists provide. It's the same thing as your beef with Title VII - it may be perfectly desirable and right for people to be free from hearing speech that creates a hostile work environment, but in your view, Title VII goes too far and suppresses speech.

So, EV, where do you draw the line between public accommodations laws that are First Amendment-sound, and laws that infringe on freedom of expression? That's the balancing act that leads to the temptation of inconsistency on either side of it.
4.10.2008 4:46am
Tracy W (mail):
You are not hired to give your interpretation of the wedding.


Well I can't speak for the happy couple in this particular case, but I do know that when I hired a wedding photographer I was consciously looking for a photographer who took photos in a style that I liked. The one we chose took lots of informal happy photos, not formally-posed and not moodily artistic.
4.10.2008 6:08am
Simon (391563) (mail) (www):
What about lawyers? Most of what we do is expressive in one form or another. Does that protect our prejudice?

What if I were an old-fashioned letter writer? I open a store, 5 cents a page, and I'll write whatever you want me to for your beau or your belle. Only I don't write for anyone who isn't white. Actionable?

In other words, to what extent are those of us whose professions & commerce expressive bound by anti-discrimination laws of general application? I don't think the answer is quite as clear cut as this post suggests.
4.10.2008 7:01am
Hoosier:
>>>If you failed to take pictures of the bride and groom, then only took pictures of the materialistic trappings of the wedding, as an expression of your feelings that "Marriage is a fraud" then you'd soon find yourself in a lawsuit.

If Michaelangelo had chosen to paint the ceiling of the Sistine Chapel with scenes from same-sex weddings, I don't think Pope Julius II would have paid him.

The Sistine Chapel is therefore not a work of art?
4.10.2008 7:35am
Brett Bellmore:
I still think this is a clear 13th amendment case, but I gather the courts have hollowed that amendment out, so that it doesn't apply to any compulsion of service they approve of.
4.10.2008 7:40am
Milhouse (www):
If wedding photos weren't creative expressions, then they wouldn't be copyright. Anyone care to claim that they're not in fact copyright?
4.10.2008 7:40am
Milhouse (www):
Forget the First Amendment. Suppose I'm a day labourer. I dig holes for a living. Nothing First-Amendmenty about that. Now suppose I decide that I don't want to work for black people. I refuse all job offers from black people, and let them know not to bother offering me a job again, because I will not work for them. I loudly declare that "I haven't sunk so low as to take orders from a nigger"; I accept offers from non-black people for harder work at lower pay; on days when I get no other offers I go home empty-handed; and in other ways ensure that there's no doubt that my motives are purely racial. Is it really the case that a state agency can compel me to accept the next offer I get from a black person? How is that not a violation of the 13th Amendment and utterly repugnant to the freedom the USA is supposed to be about? In what sort of country does one have to justify refusal to work for somebody?
4.10.2008 7:49am
CleverNickname (mail):
Milhouse, let's take that even further. Let's say there's a woman who advertises her services as a surrogate ala the Baby M case Todd Zywicki blogged about earlier. Then let's say she's approached by a gay couple who want her to carry a baby for them. If she doesn't approve of gay marriage, does she have a right not to work for them, or must she be forcibly impregnated?
4.10.2008 8:21am
kadet (mail):
great, now I can refuse to sell furniture to gay clients. Thanks. After all when I help them pick fabrics for sofas I create art, right?
4.10.2008 8:25am
Hoosier:
>>>does she have a right not to work for them, or must she be forcibly impregnated?

It depends: Can she copyright the baby?
4.10.2008 8:25am
PersonFromPorlock:
Interesting and once-worthy arguments all, but clearly overwritten by the Right Not to be Offended.
4.10.2008 8:31am
Hoosier:
>>>great, now I can refuse to sell furniture to gay clients. Thanks. After all when I help them pick fabrics for sofas I create art, right?

Umm. If your business has anything at all to do with picking out swatches, and you refuse to serve gay men . . . doesn't that kinda wipe-out the client base?
4.10.2008 8:41am
ResIpsaLoquitur (mail):
Although the discussion is trying to find a "speech" exception to the situation, the crux of the issue is whether a person can be forced to participate in an activity with which they don't agree. Inevitably, this New Mexico law is going to capture somebody who won't fall within a "speech" exception, assuming arguendo one exists.

My first thought when reading this story was: gee, could the same law be used to force a Christian pharmacist to dispense the morning after pill (assuming the law protected that situation as well)?
4.10.2008 8:49am
kadet (mail):
hoosier, there are plenty of straight women to support my family expenses
4.10.2008 9:00am
Joe Bingham (mail):
What if I were an old-fashioned letter writer? I open a store, 5 cents a page, and I'll write whatever you want me to for your beau or your belle. Only I don't write for anyone who isn't white. Actionable?

You may not've read the other posts yet, but you're missing a distinction he's made several times. The issue is the content of the expression. No, you couldn't be forced to write old-fashioned letters saying "people who aren't right are awesome and equally cool," because your objection would be to the content of your protected speech, rather than to the race of the would-be customer. Yes, you could be forced to write "some apples are red" for a black guy, because your complaint wouldn't be the content, but the customer.

At least that's the distinction I've understood him to make--content vs. customers.
4.10.2008 9:35am
ERH:
Once again I think we conflating commerical activity with creative free speech. And yes I believe that wedding photography is expressive, I've shot more than a few weddings myself. The key to my mind remains, that when you hold your services out for hire you are essentially giving up your right to have absolute control of your expression.
4.10.2008 9:35am
randal (mail):
I'm from New Mexico - annoyingly in this case. New Mexico is strange, I wouldn't read too much into it. (The Governor prior to Richardson was this hyper-pro-pot but otherwise far-right Republican.) It's "The Land of Enchantment" read "We Lean Center-Wacky."

I don't think this case is (should be) very much about the First Amendment.

I rather think this case is more about the broader need to distinguish between small businesses and large corporations in, like, all policy. I.E., assuming the First Amendment weren't implicated, I still think that a small business owner such as Elaine should have less-to-no burden in this sort of question. I include regulations such as handicapped access, employee rights (somewhat), the new Florida gun law, etc. etc. as regulations which shouldn't apply to small businesses (i.e. those that approach individual or family ventures). I like the "we reserve the right to refuse service to anyone" ideal.

Corporations have actual power, and I completely support the above regulations (and more) when it comes to even smallish corporations.

In some ways, you could compare to Federalism. Let the small businesses be experimental with as much leeway as practical. Small businesses thrive in large part when allowed to differentiate themselves. I don't even care if there are overtly racist small businesses (which let's be honest, exist - I live in Seattle now and there are several bars and barbers which I am not allowed to visit due to being white).

As an aside - New Mexico produced one of the most interesting Supreme Court cases of (I think it was) last year, having to do with state educational funding distribution requirements. The statute lays out a very straightforward forumla for qualifying distributions, which New Mexico clearly didn't satisfy. Equally clear was that congress didn't really understand the formula when they passed it. The courts were so split all the way up that the Dept. of Education administrative decision was still the controlling judgement by the time it reached the Supreme Court... which overturned the plain language of the statute. It's a very interesting split decision... if I remember correctly, Kennedy wrote a brief concurrence where he basically said straight up that this is the one case in a million where policy considerations get to override plain language.
4.10.2008 9:40am
Anonymous Reader:
Interesting topic,

I would have to say that this situation is the beauty of a free market system. Doesn't a consumer have a choice in the matter? This gay couple doesn't have to use this photographers services.

There have been several historical examples of businesses getting into trouble for not providing services to different people. Like in the MLK thread the other day WRT MLK's dealings in the Chicago real estate market. Cicero or something?

I think that there is a clear distinction between art/expression type services and other services. Photography, architecture, etc should be protected by the First Amendment, but the same could not be said for a McDonalds, a movie theater, cab drivers, or dry cleaner. The latter places are not protected in their speech or expression, yet the former are protected. Those art/expression type services are dealt with by the free market. The other businesses are dealt with by the govt.

Anonymous Reader
4.10.2008 9:42am
Zeno (www):
This is one of those cases where I thank God that lawyers exist so that someone can actually figure out all the rights involved and how to balance them.
4.10.2008 9:43am
Frog Leg (mail):
Slightly different question. Suppose photographer's business is incorporated. Can state require business to adhere to anti-discrimination policy as a condition of incorporation?
4.10.2008 9:47am
Prufrock765 (mail):
Freedom of speech is the crux of the issue, huh?

So can a newspaper refuse to run photos of interracial weddings?
4.10.2008 9:56am
Justin (mail):
I'm with Mackum on this. While the preparation of food can be artistic, a public restaurant can't refuse to serve black people because it doesn't go with his art. An artist doesn't have to photograph black people, but a person who runs a "I'll take photos of your wedding" business has to serve clients equally under federal law, and the First Amendment simply does not apply, as there is no speech, any more than a public notary who refuses to serve African Americans is protecting their "speech" writes because their work involves words.
4.10.2008 9:59am
Bryan C (mail):
Professional wedding photographers (and other sorts too, I'm sure) refuse contracts all the time for all sorts of reasons. They may have a prior engagement, be unfamiliar with the particular kind of ceremony, uncomfortable with the expectations of the bride and groom, wary of interference from other family members, or simply want a weekend off to catch up on other work. I'd go so far as to guess that the best wedding photographers refuse more business than they accept.
4.10.2008 10:00am
ERH:
Bryan,
Of course wedding photogs refuse business but they shouldn't be allowed to refuse the business in a discriminatory manner.
4.10.2008 10:07am
NOLA lawyer:
Prof. Volokh:

I'm not trying to be sarcastic here. Under your argument, could a photographer who takes basic portraits at wal-mart or Sears simply refuse to photograph blacks or gays?

If not, what's the difference and where is the line where "choosing their subjects based on race" is ok?
4.10.2008 10:26am
Ken Arromdee:
If my wedding photos all came out dark and out of focus then I certainly wouldn't accept the excuse that "as a artist" the photographer was "voicing an opinion".

If you hired a speechwriter and the speechwriter wrote "See Spot Run" as his speech, you wouldn't accept that excuse either; yet the speech is still speech.
4.10.2008 10:41am
Uh_Clem (mail):
See here for instance, or look at this (schlocky) wedding picture.

Anything that can be done can be done poorly. Plumbing, for instance.

Maybe if most of the plumbers in town told Eugene "Sorry, but we don't do plumbing for Jews." next time his sink was clogged he'd change his mind on the issue.
4.10.2008 10:42am
ResIpsaLoquitur (mail):
By the way, why can't we let market forces dictate what the law is trying to force on us?

A photographer won't take gay wedding photos. A newspaper won't run photos of interracial weddings. Fine; people boycott those things because they don't want their dollars supporting what they find to be bigoted. The businesses have two choices: adapt to the times, or go under. Problem solved, no legal intervention needed.
4.10.2008 10:47am
alkali (mail):
It strikes me as an important distinction here that while wedding photographers do exercise artistic control over substantial parts of their work, key elements of the photographs -- the setting for the ceremony and the reception, flowers and other decorations for those locations, the time of day, the identity and number of guests, and (most significantly for these purposes) the identity of the married couple -- are never artistic, expressive choices made by the photographer.

If this photographer had a practice of carefully reviewing the couples who sought her services and rejected some but not others on artistic grounds -- and I should say that I've never heard of such a thing -- it would seem more reasonable to me to say that her choice of whether to photograph a particular couple is an expressive choice that is entitled to First Amendment protection.
4.10.2008 10:47am
Uh_Clem (mail):
Eugene, I think we agree that restaurants should be required to serve black people. To do this, the waiter has to communicate e.g. explain the specials, ask the customers what they want to drink, etc. Surely this is speech. Is compelling the waiter to do so a violation of his 1st amendment rights?

Whether the speech is "artistic" or not seems beside the point. Or is there some special category for "art speech" that I'm unaware of.
4.10.2008 10:54am
Uh_Clem (mail):
why can't we let market forces dictate what the law is trying to force on us?


Because it doesn't work. Contrary to the beliefs of some people around here, the Market Fairy does not automatically fix all problems. In the case of racial discrimination, the market force favored it at one time. Maybe it still does.
4.10.2008 10:59am
RBG (mail):
Uh_Clem -

Ah, yes, the psychoanalytic approach to defining constitutional rights. Do such rights essentially come down to a governmental guarantee against hurt feelings? And do you sincerely believe that the only reason we libertarian-leaning folks value the principle of individual liberty is that we've never been inconvenienced or offended by another's exercise of same? And would you be equally willing to concede, say, limitations on the First Amendment vis-a-vis art: After all, why doesn't the fundamentalist Christian who argues that the First Amendment should be banned automatically win the argument under Uh_Clem's Rules of Sophistical Reasoning by noting that Uh_Clem might feel differently if said art was directed at mocking whatever Uh_Clem held sacred.

Moreover, has it ever occurred to you that those of us on the libertarian end of the spectrum might have a commitment the principle of individual liberty that trumps any personal experience of prejudiced we might have faced in the past? I'm sure Eugene has his own experiences of bigotry to recount. For myself, I would note that I'm in an interracial marriage and during our time in my wife's home country encountered severe difficulty for a period of about a month finding a landlord who would rent to us. Sure, I was angry, and I made it clear to the agent and to others in the community that the behavior was unacceptable. But I never thought of bringing the power of the state to bear on the poor beknighted fools. Now, does that experience sufficiently qualify me as "victim" in your book to allow me to have a view on the proper balancing of constitutional rights, or is something more required? Sheesh.
4.10.2008 11:03am
Bryan C (mail):
Of course wedding photogs refuse business but they shouldn't be allowed to refuse the business in a discriminatory manner.

Based on these discussions I hardly think that's a given. And I suspect many would disagree on what "discriminatory" even means in this context.

Apparently if you are a photographer the key is to make sure you have a plausible lie to refuse contracts you don't want to enter into. So, if the photographer refuses the contract because he has a prior appointment, can the state require him to prove that to the satisfaction the customer? And if it turned out that he's actually free that weekend, can he be punished for lying to them? That doesn't seem nearly as unlikely as it did before this case.
4.10.2008 11:08am
q:

Eugene, I think we agree that restaurants should be required to serve black people. To do this, the waiter has to communicate e.g. explain the specials, ask the customers what they want to drink, etc. Surely this is speech. Is compelling the waiter to do so a violation of his 1st amendment rights?

Once again, I'm quite amazed people do not see the distinction of being forced to express a certain viewpoint with being forced to express one's viewpoint to a certain person. The content of the waiter's speech is not coerced in any fashion. He can say as he pleases, he still needs to serve the customers, something not expressive.
4.10.2008 11:19am
RBG (mail):
And though it's been hinted at in earlier discussions, I hope that those commenters who want to bring the jackboot of the state human rights bureaucracy down on poor Elaine's neck would be equally enthusiastic about forcing her to agree to photograph, say, a Santeria wedding (assuming there is such a thing; but even if there's not, humor me for a moment) involving the sacrifice of animals or a fundamentalist LDS sect member's polygamous wedding to a sixteen-year-old girl (let's assume (1) that the age of consent is 16 and (2) that the wedding takes the form of a commitment ceremony that does not purport to be valid under state law - i.e., that, just as with the gay wedding, it's not a valid marriage but also not an illegal ceremony). After all, the New Mexico statute forbids discrimination on the basis of religion, does it not?

If you would distinguish between the actual case and either of these hypotheticals, please explain why. Or is it simply that gays are "more equal" than less cosmopolitan (or more beknighted) protected classes?
4.10.2008 11:20am
Uh_Clem (mail):
RGB,

You're reading waaaaay too much into my admitedlly snarky post. The point I was trying to make is that a photographer who refuses to provide her usual service to lesbians is not very different than a plumber who won't fix pipes for Jews. Personalizing it to point directly at our host was just a rhetorical fluorish; re-reading it I can see how it could be taken the wrong way.
4.10.2008 11:21am
q:

An artist doesn't have to photograph black people, but a person who runs a "I'll take photos of your wedding" business has to serve clients equally under federal law, and the First Amendment simply does not apply, as there is no speech, any more than a public notary who refuses to serve African Americans is protecting their "speech" writes because their work involves words.

What general principle is there to categorize wedding photos as "no[t] speech," but to imply that other photos are? And are you willing to live with the consequences, that legislatures can forbid taking photos of same-sex commitment ceremonies?
4.10.2008 11:27am
RBG (mail):
Well, yes, of course: If Elaine refuses any services to lesbians, then she's as worthy of social condemnation as if she refused to provide any services to Jews (though I still don't see why that would justify the use of the strong arm of the state). But there's no evidence that this is what Elaine has done. Rather, she has refused to contribute to a ceremony, a ritual, that she feels is immoral. Folks on this and other threads have used the example of an architect refusing to build a house for a black couple, but that's not the right analogy. The better analogy is this: Is an Jewish architect required to provide her services to build any Christian church, much less a Christian Identity church? I should certainly hope not, though apparently in the topsy-turvy world we now live in, refusal to enter into such a contract would be grounds for alleging a human rights violation.
4.10.2008 11:29am
ERH:
q: the key distinction is that no one is asking the writers or photographers to personally express an opinion. Instead they are asked to produce a product for a client. Yes it's an expressive product but it doesn't require a personal expression by the producer.
4.10.2008 11:29am
RBG (mail):
Maybe this is the way it has to be brought home to folks: Someone should enlist the hateful bigots at Fred Phelps's church to ask a gay printer to print their literature, protest materials, and so on; a gay webdesigner to design their website (it could certainly use some work); and a gay photographer to document their protests at gay funerals. And when those vendors (rightfully) refuse and Phelps and his gang win a favorable ruling from the NMHRC on the grounds of religious discrimination, perhaps folks on the left will finally realize why these laws and tribunals are so offensive to people who value individual liberty and freedom of conscience.
4.10.2008 11:34am
Uh_Clem (mail):
if the photographer refuses the contract because he has a prior appointment, can the state require him to prove that to the satisfaction the customer?

No. The burden of proof would be on the regulatory agency or prosecutor, not the photographer. But they probably could subpoena the relevant business data. (calendars, emails)

And if it turned out that he's actually free that weekend, can he be punished for lying to them?

Lying to the customer about being busy is not illegal per se. Lying as a means to implement a discriminatory policy would be. My understanding is that the prosecution would have to prove intent or a pattern in addition to the falsehood.
4.10.2008 11:34am
gattsuru (mail) (www):
q: the key distinction is that no one is asking the writers or photographers to personally express an opinion. Instead they are asked to produce a product for a client. Yes it's an expressive product but it doesn't require a personal expression by the producer.


Except it does require personal expression by the producer. Choose of positioning, placement, timing, lighting, mood, and posing are all expression created by and expressed by the producer.

That's why you can copyright photographs of the real world.
4.10.2008 11:35am
RBG (mail):
So, ERH, you would compel a Jewish architect to draft up the plans for a Christian Identity church? No one's asking the architect to express her opinion on the theological tenets of the church (or anything else), and religion is, in New Mexico at least, a protected class. Yes or no, please.
4.10.2008 11:36am
The Unbeliever (mail):
Yes it's an expressive product but it doesn't require a personal expression by the producer.


So what if a newspaper editor asks an African-American freelance writer to put together a column (not an editorial) on "How Blacks Are Destroying America", and provided a handy list of demographic facts to be used in it? Any decent writer can play devil's advocate on positions they don't agree with or news stories they would rather not tell people about. Should the writer be forced to put together speech that is not "personaly expressive", whatever that means?
4.10.2008 11:37am
q:

q: the key distinction is that no one is asking the writers or photographers to personally express an opinion. Instead they are asked to produce a product for a client. Yes it's an expressive product but it doesn't require a personal expression by the producer.

In being asked to produce a product, they are being asked to express a certain viewpoint. I don't quite understand why it doesn't require a "personal expression"; the producer is making the expression isn't she? In what way is that not personal?
4.10.2008 11:38am
frankcross (mail):
It's definitely daring -- eliminating all legal regulation of any expressive activity. Do you want to eliminate compulsory drug labels? Legalize fraud in all communications?

Seems the folks on this board really hate antidiscrimination regulation. Take a stand on some other issues!
4.10.2008 11:40am
The Unbeliever (mail):
Seems the folks on this board really hate antidiscrimination regulation. Take a stand on some other issues!


OK. It's my stance that posters who disagree with the majority opinion of the commenters on a blog are attempting to create a hostile environment, and should be sanctioned. Your right to express yourself on volokh.com should NOT be used in a discriminatory manner against minorities like libertarians.

How was that? When will you mail us your check for $6600?
4.10.2008 11:44am
another anonVCfan:
"It's definitely daring -- eliminating all legal regulation of any expressive activity."

Yeah, that's what people have been saying. No one, not a soul, has limited their critique to government regulation of the content of expressive activity.
4.10.2008 11:48am
Hans Bader (mail) (www):
This is not a difficult case; liability should be rejected.

The anti-discrimination statute is being applied by the Commission in a very peculiar way. (I say that as an attorney who used to help adjudicate discrimination cases at the U.S. Department of Education, Office for Civil Rights). And the First Amendment defense is straightforward.

Photography is expressive; most businesses (say, selling hot dogs) are not. Ruling in favor of the photographer is not only consistent with the statute (which forbids discrimination based on customers' sexual orientation, not based on the ceremony they wish to capture on film), but even if that were not the case, ruling in favor of the photographer would not carve out a big exception to the statute's reach or vitiate any compelling interests.

Photography is inherently expressive. That's why copyright exists in photographs.

Since the photography is expressive, the case should be governed by the U.S. Supreme Court's decision in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995), which held that a state's gay-rights law and public-accommodation law could not be used to force an expressive activity (a parade, in that case) to embrace a message of support for gay causes, because doing that violated the First Amendment.

The New Mexico Human Rights Commission's ruling against Elane Photography in the Vanessa Willock case should therefore be reversed.
4.10.2008 11:51am
Bryan C (mail):
ERH, that's one of the points in dispute, though perhaps not a key one. Many high-end wedding photographers trade on the fact that their work is, in fact, a personal expression. They cultivate a distinct style that sets them apart from other photographers in their field, and their clients willingly surrender virtually all creative control to the photographer. There are some wedding photographers who's work is so personally distinctive that others in the same field can immediately identify it on sight.

I'm not really sure how that's relevant, though. Unless someone suggests that "really good" wedding photographers be granted special creative rights that their more mundane co-professionals are denied.
4.10.2008 11:54am
Uh_Clem (mail):
Someone should enlist the hateful bigots at Fred Phelps's church to ask a gay printer to print their literature, protest materials, and so on

Folks more knowlegable about the relevant law may need to correct this, but my understanding is that a printer is under no obligation to print whatever content the customer wants. It's legal to say "I won't print anti-gay literature." It's also legal to say "I won't print pro-gay literature."

What's illegal is to say "I won't print your material because you're black." or "I won't print your material because you're gay." or "I wont' print your material because you're straight."

So, your hypothetical gay printer can't say "Sorry Fred, but since you are heterosexual I won't print your pamphlets." He can say "You are a raving nutjob and I refuse to print this crap."

I think there's an argument to be made that our photographer is more like our hypothetical printer than like a restaurant who won't serve gays. (i.e. I don't do this rather than I won't do this for you because you're gay.) But I haven't seen it yet. Anyone?
4.10.2008 11:55am
Ken Arromdee:
Eugene, I think we agree that restaurants should be required to serve black people. To do this, the waiter has to communicate e.g. explain the specials, ask the customers what they want to drink, etc. Surely this is speech. Is compelling the waiter to do so a violation of his 1st amendment rights?

While the waiter is communicating, the waiter isn't objecting to the content of the communication. If a white person came along, he'd be willing to say the exact same thing to the white person.

Taking photos or writing speeches inherently involves communicating something different for the minority customer. Waiting tables doesn't.
4.10.2008 11:55am
Clayton E. Cramer (mail) (www):
If a photographer can't refuse to do a lesbian commitment ceremony, can a gay newspaper refuse to run a full page ad about reparative therapy? Can the New York Times refuse to run ads from neo-Nazis calling for the removal of all Jews from political office? What (other than the fact that homosexuals are offended) distinguishes those hypotheticals from this case?
4.10.2008 11:59am
another anonVCfan:
The photographer didn't say, "I don't take pictures for gay people." She didn't even say, "I don't take pictures of gay people. She said, "I don't take pictures of gay weddings." How is that different than saying, "I don't print the messages of religious wackos"?
4.10.2008 12:00pm
Clayton E. Cramer (mail) (www):

Folks more knowlegable about the relevant law may need to correct this, but my understanding is that a printer is under no obligation to print whatever content the customer wants. It's legal to say "I won't print anti-gay literature."
Try again, Clem. A couple of years back, a video reproduction service back East refuse an order from a homosexual advocacy group--and got sued.

What this really boils down to: homosexuals have the right to force anyone in business to do their bidding, because disapproval of homosexuality is just a sign that you are an ignorant bigot who needs to be punished.

Homosexuals wanted the freedom to be out of the closet. Now that they are out, they are demonstrating that they aren't prepared to let anyone else be free. Time to shove them back in the closet.
4.10.2008 12:01pm
Justin (mail):
RBG,

Although the gay publisher might not have a constitutional right in refusal, its unclear if any statute would require said gay publisher to do the things you list.

Remember, here there are two issues - a) whether the statute forbids the photographer's decision, and b) whether the statute is constitutional (as applied).

Now, maybe the gay publisher is still forced to comply, because Phelps can cloak his bigotry in the guise of religion. But unless I'm missing something, Phelps is a Baptist, and unless the gay person refuses to serve Baptists, he at least has an arguable case that his hypothetical abstention is not based on Phelps's religion. Still, this is all very fanciful, because its at least equally likely that Phelps would refuse to hire a gay publisher than a gay publisher refuses to accept Phelps's money.

BTW, the equating of "being gay" and "hating gays" is pretty sickening as a moral stand.
4.10.2008 12:02pm
Adam J:
There real question here is why was Elaine so stupid as to not give a pretextual reason for not taking the job. She apparently wanted to be loud and proud that she's a bigot &I can't really muster up much sympathy for her. Plus while Prof. Volokh has a good argument, I'd like to here from how he thinks the line should be drawn- almost every service has some artistic component to them- how do we determine which ones make the cut for getting 1st amendment protection.
4.10.2008 12:05pm
another anonVCfan:
The last line in my previous post should read:

How is that different than saying, "I don't print the messages of religious wackos wacky religious messages"?
4.10.2008 12:06pm
GaltLives:
Eugene's really pushing the envelope here.

Forty years a go we had a real problem with restaurants and hotels refusing blacks. And even courthouses had 2 drinking fountains next to each other, one blacks only and one whites only.

But today I think if they repealed the Civil RIghts Act and said it's okay to refuse to serve blacks in restaurants and hotels there would be no problem. There's enough social stigma that any place that had a whites only sign wouldn't survive, or at least would be such a small segment of the market that there would be no harm to blacks.

I personally think anyone should be able to refuse to work for anyone with no governmental interference.
4.10.2008 12:06pm
frankcross (mail):
The law distinguishes them, Clayton. There are no laws requiring papers to run ads by neo-Nazis. I suppose you are saying, what if there were such laws? If our democracy adopted such legislation, then perhaps it might be required, but it's not a coincidence that we don't have such laws.

I'm curious, antifraud laws regulate the content of expressive activity and why are they not unconstitutional. I realize there is ample precedent but under this theory are not such precedents wrongly decided.

And Ken Arromdee, your attempt to distinguish is itself easily distinguished. What if a waiter took the position that he would only recite chicken specials to black people and not the other specials. Is that ok?
4.10.2008 12:06pm
Joe Bingham (mail):
I think there's an argument to be made that our photographer is more like our hypothetical printer than like a restaurant who won't serve gays. (i.e. I don't do this rather than I won't do this for you because you're gay.) But I haven't seen it yet. Anyone?

That's been Prof. Volokh's argument the whole time, I think.
4.10.2008 12:06pm
Clayton E. Cramer (mail) (www):

There real question here is why was Elaine so stupid as to not give a pretextual reason for not taking the job. She apparently wanted to be loud and proud that she's a bigot &I can't really muster up much sympathy for her.
Because she's not a liar? You are intent on forcing people to lie. Why?
4.10.2008 12:07pm
Brian G (mail) (www):
You know what I can't wait to see? When the Human Rights Commission is faced with a Muslim not wanting to do something for homosexuals. I'd like to see which "victim" they would side with.

When you see somthing like a Human Rights Commission, you know up front that any combination of being a white, Christian, heterosecual, male means you lose no matter what. Now, when it comes down to a Muslim, who is part of the most virulently and violently anti-homosexual religion in the world, but a pet favorite of liberals, I have a feeling that the HRC won't be as interested.

As a side note, that photographer is an idiot. She should embrace capitalism and take pictures for anyone hwo wants them and is ready to pay her for them.
4.10.2008 12:09pm
Clayton E. Cramer (mail) (www):

The law distinguishes them, Clayton. There are no laws requiring papers to run ads by neo-Nazis. I suppose you are saying, what if there were such laws? If our democracy adopted such legislation, then perhaps it might be required, but it's not a coincidence that we don't have such laws.
Probably because newspaper editors like laws that punish people like Elaine, but wouldn't want to be subject to the same type of governmental abuse.

Now, there is a freedom of the press provision that protects newspapers. And there is the 13th Amendment, which ought to protect Elaine from being forced to do work for someone that she doesn't contract to work for. But I'm sure that you will have some excuse for why this kind of enslavement is perfectly okay, because it serves the needs of homofascism.
4.10.2008 12:10pm
Alan P (mail):
I think the difficulty in this situation arises from a failure to remember our history and why the anti discrimination laws were passed in the first place.

It was not too long ago that Blacks were refused service in public restaurants. Think of the Woolworth sit ins and Lester Maddux, the former Governor of Georgia, who rode to office on a platform of refusing service to Blacks in his chicken restaurant.

The argument for such discrimination was based on freedom of association as claimed under the first amendment.

To combat that discrimination, the civil rights bills were passed prohibiting discrimination in food service and gradually expanded to the general prohibitions in refusing service involved here.

Certainly, there are cases where the type of service required would be either impossible, or very difficult to perform given the attitude of the provider. Perhaps shooting wedding photographs is one of those area, but reasonable people can differ on that point. To me, the test should be that based on the history of the problem sought to be remedied and not some abstract and essentially undefinable notion of free speech in this context.
4.10.2008 12:10pm
Clayton E. Cramer (mail) (www):

As a side note, that photographer is an idiot. She should embrace capitalism and take pictures for anyone hwo wants them and is ready to pay her for them.
There are things more important than money.
4.10.2008 12:11pm
A.C.:
Classic case of how, when you have a hammer, every problem ends up looking like a nail.

As I said on the first thread on this topic, different public policy problems require different public policy solutions. Blacks in restaurants isn't the same problem as wedding photographers with quirky personal beliefs, so the two situations aren't comparable. I would consider a photographer who wouldn't work for ANY black couple to be a nasty person, but that's not the same as organized Jim Crow across whole regions of the country. In most businesses, the penalty for a businessperson with a narrow mindset is a narrow customer base and less income, not the arm of the law. It would be particularly fitting if a black (or gay, going back to the original example) photographer got into the game and started poaching business from the bigot.

The First Amendment arguments on either side (free speech and religious freedom) don't strike me as winners, but the real problem is that they are both ways to weasel out of a dilemma that shouldn't exist in the first place.
4.10.2008 12:12pm
Joe Bingham (mail):
The key to my mind remains, that when you hold your services out for hire you are essentially giving up your right to have absolute control of your expression.

Columnists? Bloggers who run ads? Painters who don't do swastikas?

When you contract out your services you may be giving up your right to freedom of expression in the context of the contractually obligated services...
4.10.2008 12:14pm
Clayton E. Cramer (mail) (www):

The argument for such discrimination was based on freedom of association as claimed under the first amendment.
What you are forgetting is that federal and state governments did not merely tolerate discrimination, but actively required it. Plessy v. Ferguson (1896) involved a Louisiana law that required railroads to segregate passengers based on race--with personal fines for the officers of the corporation if they weren't enforcing the law. West Coast Hotel Co. v. Parrish (1937) involved a Washington State law that discriminated against women concerning working conditions in the hopes of forcing them out of the workplace.

Having spent many decades strongly promoting discrimination against blacks and women, I can have a grudging support for laws that tried to, and actually did, break those patterns. Hostility to race was never based on religious belief in this country; it was based on maintenance of an economic system and a twisting of Social Darwinism. Only in the last couple of decades have bizarre groups like Aryan Nations tried to construct a religious veneer around their racial hatreds.

Unlike race and sex, there's no way for a restaurant owner or innkeeper to know that you are homosexual unless you make an effort to let them know.
4.10.2008 12:18pm
Joe Bingham (mail):
(painters who accept commissions but don't do swastikas, i mean)
4.10.2008 12:18pm
Clayton E. Cramer (mail) (www):

Still, this is all very fanciful, because its at least equally likely that Phelps would refuse to hire a gay publisher than a gay publisher refuses to accept Phelps's money.
Unless, like this case, Phelps was looking for a way to sue the gay publisher and cause him considerable harm.

BTW, the equating of "being gay" and "hating gays" is pretty sickening as a moral stand.
I think homosexuals demanding the right to enslave people is pretty sickening, too. But that's what you are defending.
4.10.2008 12:22pm
frankcross (mail):
Clayton, I think the 13th Amendment argument is interesting and might be better than the 1st Amendment argument. But when you write "homofascism" you are pretty much discrediting everything else you say.
4.10.2008 12:25pm
q:

I'm curious, antifraud laws regulate the content of expressive activity and why are they not unconstitutional. I realize there is ample precedent but under this theory are not such precedents wrongly decided.

A hardcore libertarian might say they are wrongly decided. A legalist would say fradulant speech is of low-value and thus not protected, but photographs obviously are incomparable. A pragmatist might say certain restrictions on speech are necessary, but in the case of Elaine, it's difficult to say that the homosexual couple's marginal cost outweighs the marginal cost to the photographer. The former can always go to another photographer. The latter must now express a viewpoint that she finds immoral.

I suppose my problem is I'm not sure what "theory" you're talking about. And I don't really see anyone espousing that no expression should be regulated.
4.10.2008 12:25pm
ERH:
RBG,
Yes I would.
4.10.2008 12:33pm
PLR:
While I prefer sneakers to jackboots, I must confess that I am fond of civil rights laws even though they infringe on the rights of those who wish to limit their associations, in favor of certain groups who have been disproportionately dissociated.

This is an interesting case, and I'm still not entirely sure what I would do with Elaine's constitutional claim (but if you put me on the federal bench I'll make the call - and Elaine's the underdog).
4.10.2008 12:37pm
frankcross (mail):
q, that exactly goes to my point. I agree with your approach. But the posts on this topic have seemed to take the view that no expression should be regulated. But if you accept the more sensible view that some expressions may be regulated, then the issue is which ones and when.

This board seems to presume that discriminatory speech (or nonspeech) is of significant expressive value but that the countervailing goals of antidiscrimination law are not so significant. But this is never analyzed or demonstrated, just presumed, which makes me wonder. Reasonable minds might differ

I agree on the particular photographer example you give, but you can't look at these things case by case (defendant -- "my particular fraud was no big deal"), the law has to have some sort of general rules, so the question is the general one of discrimination against gays. And I personally don't think that the photographer's actions should be made illegal -- I just think that calling it "expressive" and therefore protected by the First Amendment from democratic action is far too simplistic. Nobody has explicitly said that "no expression should be regulated," but it's implicit in the posts, which are giving me no apparent limiting principle.
4.10.2008 12:39pm
Uh_Clem (mail):
Hans Bader,

Thanks for what is probably the best post I've seen in the various threads supporting the photographer.


Hurley held that a state's gay-rights law and public-accommodation law could not be used to force an expressive activity to embrace a message of support for gay causes, because doing that violated the First Amendment. [edited for consiceness]


The relevant question here is: By taking photos of the ceremony is the photographer engaged in expressive activity that supports gay causes? In Hurley, the presence of the gay marchers in the parade amounted to a tacit endorsement of the cause by the parade orginizers. My take is that while the photos may be "expressive" they aren't necessarily a tacit public endorsement of gay causes, any more than a photographer who takes pictures of a Klan rally is tacitly endorsing that cause.
4.10.2008 12:40pm
SeaDrive:
All these comments and I still don't know if we're going to hell in a handbasket because the photographer has to do the photos, or because the gays are being forced back into the closet where everyone can deny they exist.
4.10.2008 12:41pm
RBG (mail):
BTW, the equating of "being gay" and "hating gays" is pretty sickening as a moral stand.

As a moral stand, certainly. But as a legal basis for the regulation of speech, I would find the government's decision to punish advocacy on either side of the moral question even more sickening. And the last time I checked, we were debating issues of constitutionality and individual liberty, not morality. Though, admittedly, these days even lawyers are all too often incapable of distinguishing the two.
4.10.2008 12:47pm
RBG (mail):
ERH, thank you for your response. I find your view rather frightening and believe the policy it implies should be repugnant to free citizens. But I do admire your consistency.
4.10.2008 12:50pm
J_A:
I guess it will be of no use to point to Clayton that when he says:

What you are forgetting is that federal and state governments did not merely tolerate discrimination, but actively required it.


Until very recently, gays were not allowed by the state to engage in several professions (teachers, diplomats, etc.).

His solution, of course, is that gays could just lie, tell everyone that they are straight, put fake pictures or their imaginary opposite sex spouses in the office, make excuses why they never show up, etc. After all, if they did not tell people they were gay, people like Clayton would not be forced to actually express how repugnant and deviate they are.

It would be a great solution, if gays just lied, but someone also said in this thread:


Because she's not a liar? You are intent on forcing people to lie. Why?


Who was it? Oh, it was Clayton. Never mind
4.10.2008 12:51pm
Clayton E. Cramer (mail) (www):

Clayton, I think the 13th Amendment argument is interesting and might be better than the 1st Amendment argument. But when you write "homofascism" you are pretty much discrediting everything else you say.
Who is trying to suppress opposing perspectives, using governmental power for that purpose?
4.10.2008 12:56pm
Scrivener:
I think that the tension here is in that content discrimination (legal) and client discrimination (illegal) are mixed up here.

It's illegal to refuse to make pictures for Jews because they are Jews.

But don't think it is illegal to refuse to make pictures of Jews because they are Jews.

As I understand it, the wedding photographer refused to take pictures of a same-sex wedding NOT because she refuses to take money from or deliver merchandise to a same-sex couple, but because she refuses to make pictures of a same-sex couple.

OTOH, if a same-sex couple hired her to photograph a bunch of flowers, and she did photographs of other people's flowers, she would not be able to refuse.

Examples of a cook, a house painter, etc. are not relevant because would they create the same content for, for example, Jewish and non-Jewish clients, all other things being equal.
4.10.2008 12:56pm
RBG (mail):
Justin,

First, note that I said printer and not publisher - it's an important distinction in the hypothetical, given the parsing that has gone as to whether a wedding photographer is a real artist. Second, I chose the example of Phelps carefully because I think it's exactly parallel to the Elane case: There's no evidence that Elane refuses to serve lesbians; she simply refuses to contribute to a ceremony that happens to involve lesbians. In the same way, my hypothetical intentionally doesn't turn on whether the gay printer refuses to serve Baptists; the question is whether he, like Elane, will be sanctioned for refusing to contribute to the dissemination of statements that happen to involve - and derive from - religious (and therefore protected) viewpoints. I don't see how the two are distinguishable.

And Clayton's hit the nail on the head: I find it hard to believe that the lesbian couple in the Elane case would want to hire Elaine if they knew how she really felt about their wedding (i.e., if she was a vocal member of Phelps's church but did not refuse business from gays or lesbians). It's more likely that they viewed this as an opportunity to punish someone whose views were objectionable to them. Why should we expect Phelps to behave any differently. Do you think he's actually better mannered than the typical lesbian couple? I'm not willing to give him any credit on that score.

In fact, I'd be willing to pony up cold hard cash to encourage someone like Phelps to bring such a case. The entertainment value would be immense.
4.10.2008 1:00pm
Clayton E. Cramer (mail) (www):

Until very recently, gays were not allowed by the state to engage in several professions (teachers, diplomats, etc.).
Teachers, I knew about. But diplomats? Pray cite the law on that. Even in the 1970s, the National Security Agency only had a problem with closeted homosexuals; open ones were considered unblackmailable.

His solution, of course, is that gays could just lie, tell everyone that they are straight, put fake pictures or their imaginary opposite sex spouses in the office, make excuses why they never show up, etc. After all, if they did not tell people they were gay, people like Clayton would not be forced to actually express how repugnant and deviate they are.
Sorry, but this is not the case. I had a teacher in high school who was a very private person. No pictures of wife or family. Everyone assumed he was gay. I later found out that he wasn't. He was married (to a woman) and had a son. He just didn't mix personal life with professional life.

There are a lot of people with whom I have worked that I have no idea whether they are married or not. It doesn't come up in conversation. They don't have pictures of family at work. In some cases, they are divorced. A few might have been discreetly gay. Most simply didn't advertise their family structure, and guess what? No one cared.
4.10.2008 1:01pm
Clayton E. Cramer (mail) (www):

Clayton, I think the 13th Amendment argument is interesting and might be better than the 1st Amendment argument.
I would compare this to the manner in which convicts in the post-bellum South were "farmed out" to private employers for the duration of their sentence, but those convicts were at least convicted of a crime for which they were being sentenced to particular labor. Elaine wasn't convicted of anything before the lesbian masters demanded her labor.
4.10.2008 1:05pm
ERH:
RGB, I love freedom but I believe that when you enter into commerce your freedoms are balanced by the states interest in protecting citizens against discrimination. If this wasn't a commercial venture there would be no questions.
4.10.2008 1:05pm
Ghostmonkey57:
I find it rather disgusting that so many individuals actually believe forcing the photographer to violate her religious and moral beliefs is a good thing. I suspect that these individuals hold this position because the object of their contempt happens to be a person with conservative religious and moral principles. Like others have mentioned, I highly doubt if the fact pattern were reversed that these same individuals would take the same stance.

This brings me to another issue. Those who seek to force "tolerance" and "acceptance" and "inclusiveness" seem to vastly overestimate their power. What would stop the photographer from inventing an excuse not to photograph the ceremony? Her cameras could malfunction. She could be booked up for that particular week. She could suddenly become ill. Her car could break down. A creative mind could invent a host of excuses that would pass muster even under the most repressive "tolerance laws." A person seeking the services is still in the same position.

On top of that, how many people think it wise to force someone who doesn't want to do something to do so. Do you think you will get a quality product? What is to stop the photographer from suddenly becoming not so great. Angles could be wrong, light sources could be horrible. A host of problems could come into play when a camera is involved.

But I digress, to me, this is another example of how the "tolerant" refute the very position that they seek to enshrine into law. If the "tolerant" can't be "tolerant" of the "intolerant" then what merit does their position have in the first place.

Aren't these the same people who continually express that "You can't legislate morality!"? If so, why are they trying to legislate morality with ridiculous and immoral laws that use governmental power to force individuals to pretend to be nice to others.

The marketplace will sort out those who refuse to do business with a particular group of people. The lesbo needs to find another photographer to photograph her sham "wedding". If the photographer wants to take the financial hit by refusing service, then so be it.

I support the same stance by an atheist who refused to photograph an Evangelical wedding.

These idiotic "tolerance" laws need to go, not just for moral and legal reasons, but for practical ones as well.
4.10.2008 1:12pm
J_A:
Clayton said

Most simply didn't advertise their family structure, and guess what? No one cared.

Obviously Clayton (or anyone) cares that I do NOT disclose your family structure.

The problem is that Clayton definitely cares if I do disclose it. If I put a picture of my commitment ceremony in my office I am, as he kindly describes, out of the closet, and taht really bothers him.

I don't really care much that people object me being gay. I object when people believe that I should not express my life and family in the same terms as everyone else. In a way, I do object that I am expected to lie.

Clayton, is not different you wanting me back in the closet, than people don't wanting you to express disapproval of homosexuality.

Though again I don't think you get it. I am a human being, and I deserve not more, but not less, than you do.
4.10.2008 1:13pm
Adam J:
Clayton- "Because she's not a liar? You are intent on forcing people to lie. Why?" I'm not intent on forcing anything, I'm just remarking about her stupidity. Also, I dunno about you, but I find it far more disturbing when people are shameless about their bigotry then when they try to hide it. At least the ones hiding it realize on some level that its wrong.

RBG - "I find it hard to believe that the lesbian couple in the Elane case would want to hire Elaine if they knew how she really felt about their wedding "- You're missing the point... they tried to hire her, she told them no thanks, I'm opposed to people that are gay (i.e. she's a bigot)- &they got understandably upset (who wouldn't?) &probably figured a lawsuit was a good way to get a little payback and make some sort of stand for homosexual's rights. I'm not sure if as a matter of policy we should have lawsuits for this sort of thing (one would hope the market could work it out on its own &Elaine would pay thru loss of business from potential customers who don't want to employ a known bigot), but its certainly understandably why the couple would want to bring one.
4.10.2008 1:16pm
Clayton E. Cramer (mail) (www):

RGB, I love freedom but I believe that when you enter into commerce your freedoms are balanced by the states interest in protecting citizens against discrimination. If this wasn't a commercial venture there would be no questions.
So you would agree that a gay newspaper publisher is obligated to print reparative therapy ads, and ads from Rev. Phelps. Christian magazines are obligated to print Muslim proselytizing ads. Atheist publications are obligated to accept Christian advertising. Orthodox Jewish publications are obligated to accept ham advertising ("Perfect for Passover"). Jet is obligated to print ads from the Klan ("You are inferior scum, and you deserve to die!")

Can a "man-to-man" massage service be obligated to service women? More troubling to the employees, can a lesbian massage service be obligated to service men?

There seems to be very little freedom left if "commerce" is the magic password to abolishing individual choice.

And what makes commerce so special? Why can a woman turn down a woman for a date?
4.10.2008 1:16pm
Clayton E. Cramer (mail) (www):

Obviously Clayton (or anyone) cares that I do NOT disclose your family structure.

The problem is that Clayton definitely cares if I do disclose it. If I put a picture of my commitment ceremony in my office I am, as he kindly describes, out of the closet, and taht really bothers him.

I don't really care much that people object me being gay. I object when people believe that I should not express my life and family in the same terms as everyone else. In a way, I do object that I am expected to lie.

Clayton, is not different you wanting me back in the closet, than people don't wanting you to express disapproval of homosexuality.
I wouldn't care at all about you being out of the closet. I've worked with a number of homosexuals who were out of the closet. Some were more discreet than others. But I really didn't care.

What I do care about is that being out of the closet has made homosexuals now insistent on punishing others for failure to approve. And that fascist need that you have to punish others for failure to approve is why you need to be forced back in, so that you can remember what it is like to be punished by the government for who you are.
4.10.2008 1:19pm
Clayton E. Cramer (mail) (www):

I'm not intent on forcing anything, I'm just remarking about her stupidity. Also, I dunno about you, but I find it far more disturbing when people are shameless about their bigotry then when they try to hide it. At least the ones hiding it realize on some level that its wrong.
You call it bigotry. I call homosexuality a pretty damaged expression. The difference is that you want to use the government to punish "bigotry." I'm perfectly content to let you be a homosexual. What consenting adults do in private is none of the government's business, and it doesn't matter if it is sodomy, photography, or employment. It's a shame that homosexuals no longer believe this.
4.10.2008 1:21pm
Ghostmonkey57:
Clayton, you make excellent points. IMHO you hit the ball out of the park.

I think that you might be on to something with your hypotheticals. Perhaps those who oppose "tolerance" laws need to start using them against the "tolerant".
4.10.2008 1:23pm
Clayton E. Cramer (mail) (www):

Aren't these the same people who continually express that "You can't legislate morality!"? If so, why are they trying to legislate morality with ridiculous and immoral laws that use governmental power to force individuals to pretend to be nice to others.
Because that was only a ploy. Homofascists do believe in legislating morality--now that they are in charge. At this point, the only difference between those who wanted homosexuality to remain a crime, and homofascists, is that they are arguing about what morality should be imposed--not whether it is a good idea or not to be imposing 51%'s morality on the other 49%.
4.10.2008 1:23pm
J_A:

And that fascist need that you have to punish others for failure to approve is why you need to be forced back in, so that you can remember what it is like to be punished by the government for who you are.


I think you couldn't have said what you really want any clearer.
4.10.2008 1:24pm
The Unbeliever:
I love freedom but I believe that when you enter into commerce your freedoms are balanced by the states interest in protecting citizens against discrimination


So we have inalienable rights and core freedoms, unless we want to work for a living? Did I miss the lecture in my law classes where they pointed out only hobos and panhandlers actually get full protection for their liberty?

To put it mildly, I do not agree that the desire to enter into commercial activity automatically negates a host of rights. The Commerce Clause, the Constitution's most abused text, does not lend itself readily to that reading. Any time you want to claim a policy preference trumps a basic Constitutional right, you have a huge hurdle to clear in order to prove the benefits outweigh the price of infringing a liberty, in this case the right to freely enter into contract.

Given the contrasted level of harm to the offended party (a couple must look for another photographer) and the supposed offender (compelling speech from an artist in a medium already recognized as expressive art), I hardly think you can call the interests "balanced".
4.10.2008 1:25pm
Clayton E. Cramer (mail) (www):

Clayton, you make excellent points. IMHO you hit the ball out of the park.
Thank you. I just sent out an op-ed piece making this point to Idaho newspapers. Did I mention that I am running for state senate district 22?
4.10.2008 1:25pm
Ghostmonkey57:

Because that was only a ploy. Homofascists do believe in legislating morality--now that they are in charge. At this point, the only difference between those who wanted homosexuality to remain a crime, and homofascists, is that they are arguing about what morality should be imposed--not whether it is a good idea or not to be imposing 51%'s morality on the other 49%.


BINGO!
4.10.2008 1:29pm
Milhouse (www):
Justin wrote:

Phelps is a Baptist

Not according to any Baptist, he isn't.
4.10.2008 1:40pm
ERH:
Clayton,
To answer your question on the hypothetical ads yes they should be allowed.

For you dream massage service, the issue isn't whether a same sex massage palor would be forced to allow clientele of the opposite gender (as the court has allowed this distinction), but instead whether they would be forced to accept both straight and gay clients, which of course they should.
4.10.2008 1:41pm
Adam J:
Clayton-

"I call homosexuality a pretty damaged expression." - Nice attempt to justify your irrational dislike of homosexuality. What exactly is a "damaged expression"

"The difference is that you want to use the government to punish "bigotry." No, I don't, I wish for society to punish bigotry non-coercively. For example, I think protesting of Elaine &and refusal to employ Elaine is completely proper... actually more than proper, I think its a good thing to do.

"What consenting adults do in private is none of the government's business, and it doesn't matter if it is sodomy, photography, or employment. It's a shame that homosexuals no longer believe this." Huh? What does privacy have to do with the case here, Elaine wasn't seeking privacy. And a nice bit of sterotyping in claiming you know what all homosexuals do or do not believe.
4.10.2008 1:44pm
SeaDrive:

Until very recently, gays were not allowed by the state to engage in several professions (teachers, diplomats, etc.).


Still not allowed in the military.


Homofascists do believe in legislating morality--now that they are in charge.


If they are in charge, why are they getting kicked out of the Army even when they have critical skills?
4.10.2008 1:45pm
Justin (mail):
"It's more likely that they viewed this as an opportunity to punish someone whose views were objectionable to them."

Do you have any evidence of this? It's hard for me to believe that they researched photographers' biases beforehand, and then specifically tried to choose one that would reject them, unneccesarily complicating their wedding day. But if you have evidence of this, then that would be helpful.

Clayton's argument is strong on rhetoric but pretty weak overall - the argument that gays are "enslaving" the photographer is devoid of any tangible relationship to speech, and under his view, all nondiscrimination laws are slavery. Not only is that a pretty weak argument (such a definition of slavery takes all the teeth out of the normative value of word), but it's one that could be seen as pretty offensive (it implies that laws originally passed designed to give equal access to society to African Americans was just black people enslaving white people).

I don't see a substantive difference between publisher or printer. And your response that starts "as a legal" makes no sense. I already explained how the law would work - there's no speech component to the gay person's professional boycott of Phelps, so the only question is whether a statute would forbid the boycott. The only question you really posited in your first volley iswhether the hypothetical result of your turnaround - that the gay person could forbid Phelps's work but a professional "printer" who adheres to Phelps would have to accept gays as a client - should somehow bother me.
4.10.2008 1:49pm
Seamus (mail):
You're reading waaaaay too much into my admitedlly snarky post. The point I was trying to make is that a photographer who refuses to provide her usual service to lesbians is not very different than a plumber who won't fix pipes for Jews.

But she's not refusing to photograph lesbians; she's refusing to photograph a lesbian commitment ceremony. That actually is "very different than a plumber who won't fix pipes for Jews." (Now, maybe if the plumber was refusing to fix the pipes at ADL headquarters, because the plumber didn't want to give any assistance to Abe Foxman's jihad against Jimmy Carter, Mearsheimer/Walt, Mel Gibson, and right-wing Christians generally, you'd have a valid analogy, but that wouldn't be so egregious, would it?)
4.10.2008 1:50pm
Justin (mail):
Milhouse,

Phelps self-identifies as a Baptist, which, I believe, is all that is required under First Amendment jurisprudence. I apologize if my comments were interpreted as a slur on baptists. I agree that I've never met a Baptist who condoned his actions.
4.10.2008 1:51pm
Justin (mail):
Seamus,

Your analogy only works if either 1) the act of lesbian marriage is a political event, or 2) the lesbian couple's marriage is, from their viewpoint, a political event. Neither seem very accurate.

If the viewpoint of the third person is all that matters, then your analogy still fails. If a plumber who won't fix pipes for Jews won't do so because he believes that there should be a law stating that Jews shouldn't be allowed to live amongst Goyum, and he doesn't want to contribute to the political REALITY that they do, then the original analogy still works (at least from the distinction you are trying to make).

I agree that the ADL hypo is less troublesome - since they are discriminating against their client base based on political viewpoints rather than membership in a protected class - but the discrimination here appears to be against the Lesbians membership in a protected class, not any political speech that the Lesbians intend to make.
4.10.2008 1:57pm
ginsocal (mail):
This may be a stupid question, but when did we allow the government to determine that a private business MUST accommodate everyone who walks in the door? If I am in business, and take no government funds, I should be able to discriminate against anyone I choose to. That may not be the wisest thing to do, from a business standpoint, but that is irrelevant. That we are having this discussion at all shows how far down the liberal/fascist slope we have fallen.
4.10.2008 2:00pm
frankcross (mail):
Are blacks fascists because they embrace antidiscrimination laws? Or what about whites who oppose affirmative action and want to legally compel schools or employers to give no favor to minorities if they want to do so? Is it fascist to force antidiscrimination laws on racists (black or white)?
4.10.2008 2:02pm
Seamus (mail):
RGB, I love freedom but I believe that when you enter into commerce your freedoms are balanced by the states interest in protecting citizens against discrimination. If this wasn't a commercial venture there would be no questions.

And that's why the Jewish architect must be forced to design a Christian Identity church. But if preventing bigotry is so important that it trumps freedom, at least when "commerce" is involved, why don't we just forbid Christian Identity churches (and others holding to non-PC tenets) from contracting for architectural and other professional services at all? If they can get architects, engineers, and lawyers to offer their services for free, then fine, but as soon as money enters the picture, the state's interest in suppressing discrimination comes into play, right?
4.10.2008 2:03pm
Floridan:
A.C.: "In most businesses, the penalty for a businessperson with a narrow mindset is a narrow customer base and less income, not the arm of the law."

This is all well and good for members of a majority community, but not so good if one is a minority being discriminated against.

I would bet that in plenty of places in the South (where I grew up and have lived all my life) a restaurant or hotel that was allowed to and did prohibit black patrons could do quite well. Especially in the non-urban areas.
4.10.2008 2:12pm
ERH:
Seamus, because the idea isn't to prevent bigotry, which is a fools errand, it's to ensure that the doors of our capitalist societies are open to all comers.
4.10.2008 2:14pm
J. F. Thomas (mail):
This may be a stupid question, but when did we allow the government to determine that a private business MUST accommodate everyone who walks in the door?

1964, 1989 for those with disabilities. If you don't like it move to one of those European countries almost everyone on this blog is always complaining about.
4.10.2008 2:15pm
Hans Bader (mail) (www):
Civil commitment ceremonies aren't legally analogous to marriages, because state law doesn't attach the same binding legal obligations to them, so it isn't "discrimination" to photograph weddings but not civil-commitment ceremonies, since a civil commitment ceremony is not legally like a marriage in New Mexico. See Koebke v. Bernardo Heights Country Club, 36 Cal.4th 824 (2005) (discrimination against couple because they were in civil-union, rather than marriage, did not qualify as "discrimination" at all prior to the date on which the California legislature expanded the legal commitments resulting from entry into a civil-union so that those commitments were the same as those for a married couple).

Thus, the anti-discrimination statute is being applied by the New Mexico Human Rights Commission in a very peculiar way. (I say that as an attorney who used to help adjudicate discrimination cases at the U.S. Department of Education, Office for Civil Rights). And the First Amendment defense is straightforward.

Photography is expressive; most businesses (say, selling hot dogs) are not. Ruling in favor of the photographer is not only consistent with the statute (which forbids discrimination based on customers' sexual orientation, not based on the ceremony they wish to capture on film), but even if that were not the case, ruling in favor of the photographer would not carve out a big exception to the statute's reach or vitiate any compelling interests.

Photography is inherently expressive. That's why copyright exists in photographs.

Since the photography is expressive, the case should be governed by the U.S. Supreme Court's decision in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995), which held that a state's gay-rights law and public-accommodation law could not be used to force an expressive activity (a parade, in that case) to embrace a message of support for gay causes, because doing that violated the First Amendment.

The New Mexico Human Rights Commission's ruling against Elane Photography in the Vanessa Willock case should therefore be reversed.
4.10.2008 2:17pm
Hoosier:
Brian--"You know what I can't wait to see? When the Human Rights Commission is faced with a Muslim not wanting to do something for homosexuals. I'd like to see which "victim" they would side with."

This was my question, too. This is already presenting some problems on college campuses. Nothing that has gone to a state HRC, as far as I know. But that time cannot be far off.

I suppose "I'd like to see which victim they side with" for reasons of snarkiness. (Hey, at least I'm honest about myself.)

But I also am genuinely curious as to whether gays of Muslims are viewed by faculty and admins as more institutionally victimized. I don't have a good guess, though I assume at most major universities there are more gay administrators than Muslims. Which tends to suggest that Muslims are "more out" of an "out group."
4.10.2008 2:20pm
Hoosier:
>>>Unlike race and sex, there's no way for a restaurant owner or innkeeper to know that you are homosexual unless you make an effort to let them know.

What if he has Gaydar?

By the way, I don't believe that there is a "Homofascist" movement afoot. But if there is, I picture LOTS of leather. And REALLY EXCELLENT baked goods at the rallies.

I am, however, concerned about the gays taking over and dictating our choice of lifestyles to us: I mean, my wife is SEVERLY allergic to cats. I just don't think we should be FORCED to have one. (Call me a bigot. I don't care.)

And I'm an early bird. The nightlife-thing would absolutely KILL me. Plus I CHOOSE to wear tweed. And I don't own ANYTHING from International Male. I don't want those rights taken away!

Wow! Now I'm starting to worry.

(But when the Homofascists take over, will we get a "Harvey Milk Day" vacation every year? And if so, can they make it a Monday, so we get the long weekend? I mean, "When life hands you lemmons," I always say.)
4.10.2008 2:36pm
T.S. Jones:

She apparently wanted to be loud and proud that she's a bigot &I can't really muster up much sympathy for her.


Funny, but I always felt the 1st Amendment cuts both ways. Seems you have a "free speech for me, but not for thee (because I disagree and you're a bigot and so must be punished)" approach. And should one's sympathy for the speaker affect how the 1st amendment is applied? I certainly hope not.
4.10.2008 2:40pm
Ken Arromdee:
What if a waiter took the position that he would only recite chicken specials to black people and not the other specials. Is that ok?

No, becuase that's a case where the customers want the same content and he's only willing to provide different content. In the wedding case, the customers are the ones who want different content.
4.10.2008 2:47pm
Roscoe B. Means:
This is some of the wildest and least focused discussion I've seen here. People are completely forgetting several key elements of the original scenario and of EV's hypothetical.

First, there is no doubt that making photographs is protected expression, since it's consistently recognized as such in case law. Plumbing isn't. At some point, you have to stop reinventing the wheel.

Another component that's being ignored is that Elane's objection was based on her religious beliefs. What EV's pointing out is that the law (at least as applied by the NMHRC) is requiring Elane to assist in an event that she finds religiously objectionable, when recognition of the First Amendment interests would normally require the lesbian couple to accommodate her religious views and just find another photographer.

The scenario also has no genuine indication of discrimination against gay people. I haven't seen any credible info that Elane refuses to photograph gay people. She said she doesn't photograph same-sex weddings. I presume that she would shoot a wedding between a gay man and a gay woman, and also refuse to photograph a same-sex wedding between two straight men or or between a lesbian woman and a straight woman. That the event she objects to supporting is one that tends to be desired by a certain minority does not equate to discriminating against that minority. If you want to argue that her refusal is nevertheless motivated by an objection to "gayness," that really exposes the civil rights laws as through control measures, not equality measures.

Finally, it's not just about being forced to do something she doesn't want to do. There is no doubt that the law can and does require people to do things they'd rather not. I'm in the midst a project right now that the government forces me to complete every year by the 15th of April. In fact, in that endeavor, I'm also being forced to communicate information, but I don't have any valid religious objection to it.
4.10.2008 3:14pm
EIDE_Interface (mail):
The really interesting thing is how did America get to 51% support for this fascism. 1960? 1970? 1980? Can anyone tell me what was the turning point?
4.10.2008 3:24pm
kimsch (mail) (www):
What if the lesbian couple had come in to contract Elaine's services to do a birthday party for their child? Let's assume for the sake of argument that Elaine will photograph adult birthday parties.

If Elaine said, "sorry, I don't do children's birthday parties". Would the lesbian couple be able to sue on discrimination grounds?

How is this different than the current situation?

On another of these threads I mentioned that I belong to three "protected" groups (mostly protected for employment purposes - Woman, Over-40, disabled).

When I got married ten years ago, we went to a local florist to contract for flowers. The florist refused. They said it was because our wedding day was the day before Mothers' Day. We were disappointed that our first choice refused us service. We had gone in to order the flowers in March or perhaps as early as February. We felt that they had plenty of time for ordering flowers for our small wedding as well as Mothers' Day.

We found another florist who was willing to do a small wedding the day before Mothers' Day. We had beautiful flowers that may, in fact, have been less expensive than those available at first florist.

The first florist may have discriminated against us because I am disabled. They may not have. I don't particularly care. They may have ended up refusing too many people since a few years later they were out of business. Their building is still sitting there, empty...
4.10.2008 3:26pm
BGates:
I can no more disown Elaine Huguenin than I can my Democratic presidential front runner.
4.10.2008 3:30pm
Bored Lawyer:
Does anyone appreciate the irony that the State of New Mexico ITSELF discriminates against the same group? New Mexico does not recognize same-sex marriage. Yet it wishes to force a photographer to take pictures at a faux same-sex wedding!
4.10.2008 3:39pm
Clayton E. Cramer (mail) (www):

Clayton's argument is strong on rhetoric but pretty weak overall - the argument that gays are "enslaving" the photographer is devoid of any tangible relationship to speech, and under his view, all nondiscrimination laws are slavery.
Elaine has three choices:

1. Take a photography job that she doesn't want to take.

2. Stop doing photography.

3. Be fined for refusing to take the job.

So in a sense, it isn't slavery. She just has to pay a fine for refusing to be enslaved.

And yes, all antidiscrimination laws that require you to go out of business or accept every assignment are effectively enslavement. You are forced to work for someone against your will. It isn't lifetime slavery--but term slavery was known before the Thirteenth Amendment.
4.10.2008 3:42pm
iowan (mail):
I live in a right to work state. One thing that means is I can be fired for no reason. I would have no legal standing to sue. But I can not be fired for the wrong reason. In this case the photographer refused because the couple was gay. A protected class. Thats the wrong reason. If the groom were 6'8" and the bride 4'4" and was refused due to extreme height difference no legal action would have succeeded. Because the couple does not belong to a protected class.
4.10.2008 3:42pm
Clayton E. Cramer (mail) (www):

By the way, I don't believe that there is a "Homofascist" movement afoot. But if there is, I picture LOTS of leather. And REALLY EXCELLENT baked goods at the rallies.

I am, however, concerned about the gays taking over and dictating our choice of lifestyles to us: I mean, my wife is SEVERLY allergic to cats. I just don't think we should be FORCED to have one. (Call me a bigot. I don't care.)
You think this is funny. Elaine has been punished for refusing the orders of her temporary owners.
4.10.2008 3:44pm
Clayton E. Cramer (mail) (www):

I live in a right to work state. One thing that means is I can be fired for no reason.
When I lived in California, it wasn't a "right to work state." But I could still be fired for no reason.
4.10.2008 3:45pm
Prufrock765 (mail):
I think iowan confused "right to work" which has to do with unions; and "employment-at-will".
4.10.2008 3:50pm
Jim Rhoads (mail):
Clayton, I believe you are referring to an "employment at will" state, not a "right to work" state in your 2:45 comment. The latter is a state in which employees cannot be forced to join a union as a condition of employment. The latter is a state in which an employer may terminate an employee's employment at any time for any reason or for no reason so long as it is not for an illegal reason.
4.10.2008 3:57pm
Jim Rhoads (mail):
"latter" = "former" in the last sentence, sorry.

Pruf beat me to it too.
4.10.2008 3:59pm
Prufrock765 (mail):
A bit of stupidity is probably a small price to pay for something as monumental as Title VII; but I wonder how many of us can at least agree that a policy or law that forces us to make distinctions like "You, wedding photographer, may refuse to service these lesbians; however, you, wedding caterer, must put on your apron forthwith" is pretty darn stupid.
4.10.2008 4:00pm
Clayton E. Cramer (mail) (www):

Clayton, I believe you are referring to an "employment at will" state, not a "right to work" state in your 2:45 comment. The latter is a state in which employees cannot be forced to join a union as a condition of employment.
Indeed, which is why I was pointing out that even in states that allow employment to be conditioned on union membership one can still be fired at will.
4.10.2008 4:01pm
David Schwartz (mail):
iowan:
In this case the photographer refused because the couple was gay.
What if the photographer had a stated policy, "I don't care if you're gay or straight, but I do not photograph same-sex civil unions." Would you argue that that policy should also be illegal? Is it akin to a restaurant that doesn't serve blacks?
4.10.2008 4:01pm
iowan (mail):
Ok my bad! The point is, If you are a protected class you have more rights to sue than those who havent earned their protected rights stripes. If your a protected class you have extraordinary rights
4.10.2008 4:06pm
quasimodo (mail):
Humpty Dumpty rules the day.

If I photograph weddings does that mean have to do civil unions? It is no more a "wedding" than a commitment ceremony between a boy &his dog. Marriage is between a man and a woman.
4.10.2008 4:08pm
Jim Rhoads (mail):
And Clayton wasn't the one who started the misnomer, as Pruf correctly pointed out, and I missed.

That's what happens when busybodys try to help.

On the topic issue, I have understood that when a state tries to regulate purely personal services that involve an individual's expression, its attempts are generally subjected to more scrutiny than when that state regulates commerce lacking that quality. The more the regulation impinges on expression, the more scrutiny is warranted as to type and manner of regulation.

It is a difficult area, though, because it is susceptible to creative advocacy. As can be seen on this thread, good legal minds come up with powerful arguments on both sides of the issue. Unless you are a committed ideologue, drawing the line is tough.
4.10.2008 4:13pm
Clayton E. Cramer (mail) (www):

I would bet that in plenty of places in the South (where I grew up and have lived all my life) a restaurant or hotel that was allowed to and did prohibit black patrons could do quite well. Especially in the non-urban areas.
I would be curious to know how much of this discrimination was imposed.

Thomas Sowell's Markets and Minorities points out that if a business arbitrarily decides to give up on 10% of its potential customers because of irrational discrimination, it has the following effects--unless you can get other businesses to go along:

1. A 10% reduction in sales.

2. Assuming that your overhead doesn't change, likely a reduction in your profits.

3. A reduction in your ability to expand your business.

Something similar happens when you arbitrarily exclude 10% of your potential qualified workforce:

1. Less able to fill open positions.

2. The smaller set of choices for employees increases the wages you have to pay.

3. If potential employees know that you don't hire X, then X may not buy. Hence the "Don't Shop Where You Can't Work" campaign in 1930s New York City, directed at department stores that wouldn't hire black people.

None of these circumstances necessarily prevents a business from continuing to operate in a discriminatory manner--but to the extent that it reduces their profits, the business suffers--and non-discriminatory businesses benefit.

So how did those Southern states maintain this system of discrimination for so long? Did every business, of its volition, decide that black people couldn't try on clothes before buying? That blacks couldn't eat in the restaurant? (Of course, the separate drinking fountains were a matter of law--these are generally government buildings.)

Lots of states had laws requiring businesses to segregate their customers (for example, railroads in the Plessy decision, and some of the state laws regulating interstate buses into the 1940s). There were federal laws, such as the Davis-Bacon Act, that were passed for the purpose of guaranteeing unions would do government work. Because unions were still overwhelmingly antiblack, this put blacks out of work, and meant that non-union contractors, who would be most likely to hire blacks, were disadvantaged.

I would be curious to know if business discrimination had some legal teeth enforcing it, or if there was the threat of Klan action causing this. I find it very, very hard to believe that:

1. There weren't any greedy businessmen prepared to take advantage of the opportunity provided by catering to an integrated customer base.

2. That support for such discrimination included such an overwhelmingly majority of whites that there was simply no way for a greedy businessman to cater to this need.

Either of these require a uniformity of belief and action that usually involves coercion or government standards.
4.10.2008 4:16pm
Clayton E. Cramer (mail) (www):

It is no more a "wedding" than a commitment ceremony between a boy &his dog. Marriage is between a man and a woman.
Bigot! To the gallows for you!
4.10.2008 4:17pm
Mike G in Corvallis (mail):
Aside from the copyright issue (which I believe nails it), those who contend that wedding photography isn't "expressive" might consider these scenarios:

(1) Elaine's Photography, Inc. (which consists of Elaine the photographer, a lighting assistant, and a part-time bookkeeper) agrees to shoot the lesbian commitment ceremony. Later Elaine discovers that she has accidentally double-booked that day. Without telling the lesbian couple, she subcontracts another photographer to shoot the ceremony. Afterward, the lesbian couple object to the photographs on the grounds that the photographs don't have the style or mood or attitude that they expected from seeing Elaine's previous work, and they refuse to pay. Can the lesbian couple be forced to pay? Can they sue?

(2) Elaine's Photography, Inc. agrees to photograph the lesbian commitment ceremony. The next day Elaine discovers that she has accidentally double-booked that day -- the other job was contracted first, and other financial commitments based on taking that job have already been made. She tells the lesbian couple and offers to either subcontract another photographer or release them from the contract. They object, claiming that they specifically want her, and that if she does not perform the photography they will sue on the basis of illegal discrimination. Can they legally compel Elaine to perform the photography?
4.10.2008 4:32pm
Mike G in Corvallis (mail):
David Schwartz wrote:

What if the photographer had a stated policy, "I don't care if you're gay or straight, but I do not photograph same-sex civil unions." Would you argue that that policy should also be illegal? Is it akin to a restaurant that doesn't serve blacks?

This hypothetical may not be quite as absurd as it first appears. Wasn't there a case in Canada a couple of years ago of two straight guys who got married for the job benefits and tax breaks?
4.10.2008 4:42pm
Caliban Darklock (www):
@Hoosier:
> By the way, I don't believe that there is a "Homofascist"
> movement afoot.

I don't think there's any effort to oppress anyone coming from the gay community. I think they honestly believe their shared desires are fundamental human rights, and they're simply unable to fathom how those rights could oppress others - they consider only one half the equation. They're myopic on the matter, and given the "invisible in plain sight" life they've led for so many years, that's not surprising.

I think the basic desire of the gay community is for approval, which they have historically not gotten from the mainstream, and they can't see how it would be bad for everyone to get approval. Approval is good, right? Surely you would like to have approval, too. They fail to stop and think about whence the approval comes - from another person, who ought to have the right to withhold approval at his own discretion. But since the gay community generally doesn't disapprove of much, they don't quite fathom this concept.
4.10.2008 4:44pm
Adam J:
T.S. Jones- I never said that 1st amendment rights shouldn't protect the lowest common denominator in our society, only that I don't get particularly excited when they're not... perhaps one reason why I never wanted to join the ACLU and help defend neo-nazi parades. But if you do that's great, I respect you for that.
4.10.2008 4:51pm
Careless:
uh_Clem The relevant question here is: By taking photos of the ceremony is the photographer engaged in expressive activity that supports gay causes? In Hurley, the presence of the gay marchers in the parade amounted to a tacit endorsement of the cause by the parade orginizers. My take is that while the photos may be "expressive" they aren't necessarily a tacit public endorsement of gay causes, any more than a photographer who takes pictures of a Klan rally is tacitly endorsing that cause.

Any wedding photographer whose photos aren't endorsing the weddings covered would be exceptionally bad at the job. Wedding photography is positive propaganda designed to make the day/event look as happy and joyous as possible.
4.10.2008 4:53pm
Ken Arromdee:
Thomas Sowell's Markets and Minorities points out that if a business arbitrarily decides to give up on 10% of its potential customers because of irrational discrimination, it has the following effects--unless you can get other businesses to go along:

The flaw in this reasoning is that people are willing to pay money for intangibles. That restaurant might reject 10% of its customers, yet get more income from the remaining 90% of the customers because that 90% likes eating without blacks around, and are willing to pay for the privilege in the same way that they're willing to pay for a restaurant with polite waiters or nice paintings on the wall.
4.10.2008 5:00pm
Jim Rhoads (mail):
Another bit of esoterica that may add something to the mix:

Under fairly basic contract remedy theory, specific performance is not available as a remedy for breach of a personal service contract. The theory supporting that ancient proposition is that ordering specific performance for such contracts would be essentially ordering "involuntary servitude"

Personal services involving creative expression (e.g., trial advocate, advertising copy writer, photographer, actor, media personality, journalist, novelist, screen writer) seem to me to be less amenable to specific performance, or to regulation as to whom such servants must serce, than to mere sellers of goods or commodities.

Note also that the UCC typically does not apply to personal service contracts.
4.10.2008 5:05pm
Jim Rhoads (mail):
"serce" = "serve"
4.10.2008 5:07pm
shawn-non-anonymous:
I would wonder how well the photographer behaved when she told the couple she would not work for them. Having been in a similar circumstance (my commitment ceremony was intentionally non-traditional though) I would have been offended but moved on. In trying to figure out why the couple sued, the only reason I can come up with is they were turned down in a manner that made them very angry and the suit is an attempt to get even. (IOW: purely emotional.)

I'm far more worried about government and emergency personnel refusing to help gay people for religious reasons than I am about photographers or cooks.

Note that Cracker Barrel restaurants here in the South had no significant financial setbacks after it became public they fired employees and refused service to customers they assumed were gay. Bad behavior by a business is a matter of perspective; employing and serving gay people may have lost them customers.
4.10.2008 5:12pm
David Schwartz (mail):
uh_clem:
The relevant question here is: By taking photos of the ceremony is the photographer engaged in expressive activity that supports gay causes? In Hurley, the presence of the gay marchers in the parade amounted to a tacit endorsement of the cause by the parade orginizers. My take is that while the photos may be "expressive" they aren't necessarily a tacit public endorsement of gay causes, any more than a photographer who takes pictures of a Klan rally is tacitly endorsing that cause.
That's a purely circular argument. If a photographer is required by law to take pictures of a Klan rally, then they are not tacitly endorsing the cause. If they choose to take photos of the Klan rally, when they don't have to, then they are tacitly endorsing the cause.

In the absence of a law requiring us to do business with particular people, we could choose (using any criteria we wish) who to do business with. This would make our choice to do business with someone expressive, if we chose to use it that way.

Anti-discrimination laws remove this choice and therefore foreclose this means of expression.

A lawyer can pick and choose his cases, opting not to represent companies he doesn't like even in matters that don't relate to the things he doesn't like. That a particular lawyer (say a well-known civil rights litigator) agreed to take your case can therefore be highly expressive. A law regulating lawyer's selections of their clients and vigorously enforced would simply take that away entirely/
4.10.2008 5:24pm
Anon1ms (mail):
Cramer: "I would be curious to know how much of this discrimination was imposed"

Racial segregation in the South was supported by law, coecion and "community standards."

In many respects the agrarian South was feudal in nature . . . blacks were not looked on as consumers but as cheap labor.

Within the business community, there were ways to make money from commere with blacks. While some white establishments were required by law or custom to exclude blacks entirely (hotels, for example), others served blacks, but in a lesser (and delibertly humiliating) way. For instance, restaurants would sell food to blacks, but they could not eat in the dining room; they had to go around to the back to get their meal.

Any Southern restaurant that treated blacks equally, would have forfeited their white customer base. There was no mechanism in the local community that would have caused this to change.
4.10.2008 6:33pm
Caliban Darklock (www):
Let's assume I'm a photographer, which I'm not.

Let's also assume I'm an orthodox Jew, which I'm not.

And then let's propose that a member of my synagogue (of either gender) comes to me and says, "come photograph my wedding". The proposed partner (again, of either gender) is not a Jew.

Can I refuse to photograph this wedding on the grounds that I have a religious objection to it?

My gut feeling is "yes". Indeed, when I intermarried with a non-Jew, I knew better than to seek a photographer at my synagogue; I expected the average member to object.
4.10.2008 6:50pm
Clayton E. Cramer (mail) (www):

Bad behavior by a business is a matter of perspective; employing and serving gay people may have lost them customers.
And presumably if this was really a widespread attitude, the legislature wouldn't pass a sexual orientation antidiscrimination law, would it?
4.10.2008 6:53pm
Blaze Miskulin (www):
Just a note:

Photographers do, on a daily basis, refuse to photograph people based on the model's skin color, hair color, age, gender, looks, attitude, weight, shape, hygiene, personal style, body modifications, religious convictions, personal fetishes, and a host of other criteria.

Photographers have a style and a repertoire; they have subjects that they will and will not shoot. That's the nature of the business.
4.10.2008 6:56pm
Clayton E. Cramer (mail) (www):

The flaw in this reasoning is that people are willing to pay money for intangibles. That restaurant might reject 10% of its customers, yet get more income from the remaining 90% of the customers because that 90% likes eating without blacks around, and are willing to pay for the privilege in the same way that they're willing to pay for a restaurant with polite waiters or nice paintings on the wall.
So there's no way for a society with 90% in support of such discrimination to pass such a law, is there? Unless it is imposed by an unelected elite.


Racial segregation in the South was supported by law, coecion and "community standards."
Again raising the point that a free market can't stop discrimination if it reflects community standards. But then again, a democracy that reflects those standards won't pass an antidiscrimination law, either.
4.10.2008 6:57pm
Clayton E. Cramer (mail) (www):

I think the basic desire of the gay community is for approval, which they have historically not gotten from the mainstream, and they can't see how it would be bad for everyone to get approval. Approval is good, right? Surely you would like to have approval, too.
Everyone wants approval. Adults accept that they may not get as much as they would like--and certainly don't run around trying to force people to pretend that they approve. That's just a game--something children might consider sensible, but no adult would think that.
4.10.2008 7:22pm
byomtov (mail):
I find it very, very hard to believe that:

2. That support for such discrimination included such an overwhelmingly majority of whites that there was simply no way for a greedy businessman to cater to this need.


Believe it. It's true.

Sowell's argument very foolishly neglects the fact that by serving blacks businesses would have lost lots of white customers.

Similarly, hiring black workers in certain jobs would have offended customers and co-workers, reducing profits no matter how dedicated and capable the black workers were.
4.10.2008 7:26pm
wb (mail):
Could it be that the commitment couple knew that Elaine refuses to photograph such ceremonies and therefore asked her so that they could file a complaint and collect funds to pay for their commitment ceremony photos? Is that being too cynical?
4.10.2008 7:38pm
Clayton E. Cramer (mail) (www):

A commenter asks, "how many people would (dare to) take the photographer's side here if she refused to photograph a mixed-race couple?"
I would take her side from a legal standpoint. I would certainly ask why she was refusing to photograph a mixed-race couple. I would remind her of Paul's remarks in Galatians 3:28 (NIV):

There is neither Jew nor Greek, slave nor free, male nor female, for you are all one in Christ Jesus.
The Bible makes no distinctions based on ethnicity, or sex. It does distinguish unregenerate sinners from those who or are not:
Do you not know that the wicked will not inherit the kingdom of God? Do not be deceived: Neither the sexually immoral nor idolaters nor adulterers nor male prostitutes nor homosexual offenders nor thieves nor the greedy nor drunkards nor slanderers nor swindlers will inherit the kingdom of God. And that is what some of you were. But you were washed, you were sanctified, you were justified in the name of the Lord Jesus Christ and by the Spirit of our God. [NIV 1 Cor. 6:9-11]
The Bible is abundantly clear that distinctions based on race have no place in the Christian worldview. While I am philosophically opposed to antidiscrimination laws, it is difficult for me to work up any upset towards laws that prohibit public accommodation or employment discrimination based on race, national origin, or sex for this reason--although I can understand why people with Social Darwinist viewpoints might be upset that their freedom to discriminate is impaired. About the only groups that can claim their racial hatred is religiously based are groups like Aryan Nations (which is profoundly heretical in its claims to be Christian) and World Church of the Creator (which is openly non-Christian).

Christian (and Muslim, and Orthodox Jewish) disapproval of homosexuality is based quite firmly on their disapproval of homosexuality as a sin. When homofascists insist that we do not have a right of conscience to disapprove of their sin--and that they will use the government to force us to pretend, they open the door to the use of government to suppress their sin. I have no interest in returning to those days, which just bred hypocrisy and dishonesty. But if homofascists push long enough and hard enough to use the oppressive force of government, they may discover that it comes right back at them.
4.10.2008 7:38pm
David Schwartz (mail):
Clayton:

You are certainly welcome to interpret the Bible as you like and hold whatever religious views you wish. But there are many people who argue that the Bible says the exact opposite of what you say, and their evidence is (at least to me) as convincing as yours. For example:

I drive out before thee the Amorite, and the Canaanite, and the Hittite, and the Perizzite, and the Hivite, and the Jebusite. Take heed to thyself, lest thou make a covenant with the inhabitants of the land whither thou goest, lest it be for a snare in the midst of thee


In fact, they argue, the main theme of the exodus was about the evils of mixed-race societies. They argue that many Egyptians, seeing god's power with the parting of the Red Sea and such, left with the Israelites. This is what led to the whole golden idol thing that so angered Moses. (Exodus 12:36-38)

And, of course, there's Deuteronomy 23:2, "An Ammonite or Moabite shall not enter into the congregation of the Lord; even to their tenth generation shall they not enter into the congregation of the Lord for ever."

Your claim that "The Bible is abundantly clear that distinctions based on race have no place in the Christian worldview" is merely your personal religious view.
4.10.2008 8:30pm
Asher Steinberg (mail):
My take is that while the photos may be "expressive" they aren't necessarily a tacit public endorsement of gay causes, any more than a photographer who takes pictures of a Klan rally is tacitly endorsing that cause.

They're not necessarily a tacit endorsement of gay causes, but they are a pretty explicit valorization and endorsement of gay weddings, or at least, one gay wedding. Wedding photographers aren't photojournalists, which is the problem with your Klan example. Photographers who take pictures of Klan rallies, I imagine, generally aren't doing so with the intent to paint the Klan in the best possible light. If anything it's probably the opposite. If the Klan, however, calls a photographer and says, take some pictures of us Klansmen to show the world what nice and friendly guys we really are, that's something different. When couples hire wedding photographers, it's implicit that they want the photographer to make them and their wedding look good - to capture the joy of the occasion, the mutual commitment of the bride and groom, and so on.
4.10.2008 8:43pm
J Greely (mail) (www):

Could it be that the commitment couple knew that Elaine refuses to photograph such ceremonies and therefore asked her so that they could file a complaint


The dates in the complaint suggest otherwise. They sent the first email in September of 2006 (to which the answer was simply "we only do traditional weddings"), the second in November of 2006 (to which the answer was "we don't do gay weddings"), and then filed the complaint in January of 2007.

-j
4.10.2008 9:37pm
Loophole1998 (mail):
I don't have time to read all of the comments so excuse me if this is repetitive. (And also please excuse my tier-four education.) There are circumstances when the government can force you to speak in a certain way if you want to keep your job. Example: Federal judge orders clerk to write opinion saying "X". Clerk has two choices, write X or quit job. Instead of a clerk it could be a federal pamphlet writer in Pueblo Colorado. The point is that the writer has to express him or herself according to the government's rules if he or she wishes to remain employed. Nobody would say this is a first amendment violation, because the writer could simply quit his/her job and write whatever kind of opinions or pamphlets he/she wanted to write. Why can't the photographer quit her job if conforming to the government's anti-discrimination policy is too uncomfortable?

I'm sure this is a stupid question, what with all the smarty-pantses commenting on this site, but hey....
4.10.2008 10:10pm
Loophole1998 (mail):
Isn't this about the right of the photographer to be paid for expressing herself as she desires and not about the right of the photographer to express herself as she desires?
4.10.2008 10:13pm
David Schwartz (mail):
Isn't this about the right of the photographer to be paid for expressing herself as she desires and not about the right of the photographer to express herself as she desires?
I can't understand what you're trying to say. If, for example, we were talking about a law requiring the New York Times to give "equal time" in its editorial pages, would there be some distinction between this being about the New York Times being free to express itself as it desired and being paid to express itself as it desired? What's this purported distinction?
4.10.2008 10:21pm
Clayton E. Cramer (mail) (www):

Clayton:

You are certainly welcome to interpret the Bible as you like and hold whatever religious views you wish. But there are many people who argue that the Bible says the exact opposite of what you say, and their evidence is (at least to me) as convincing as yours.
Here's the difference. I'm not prepared to use the government to force homosexuals to share my view of this. They are quite prepared to use the government to force their force on others.
4.10.2008 10:47pm
Clayton E. Cramer (mail) (www):
"force their force" should be "forced their view"
4.10.2008 10:48pm
Loophole1998 (mail):
@David Schwartz - Everytime I post something on this blog, I am made to feel like an idiot. I think it may be because I am an idiot. Feel free to ignore my previous comment.
4.11.2008 12:07am
Jon Rowe (mail) (www):

There is neither Jew nor Greek, slave nor free, male nor female, for you are all one in Christ Jesus.


Of late, I've studied the work of some conservative orthodox Christian theologians who note this text and a few others ["for freedom Christ has set us free … do not submit to the yoke of slavery" (Gal. 5:1)] have been misunderstood and misused by theologically liberal "revolutionary" theologians as somehow having something to do with political liberty or equality. Not so. Paul also says "slaves, obey … your earthly masters" (Col. 3:22). If one is a cafeteria Christian he can simply pick or choose which text to believe and disregard the other. If the Bible is infallible, good hermeneutics dictates you resolve a seeming contradiction. And that resolution is that the Bible is anti-politically charged on matters like race or political liberty and equality. The "liberty" the Bible speaks of is spiritual liberty or freedom from sin. Therefore one can be a chattel slave and still be "free" in Christ. Likewise, one can live under Jim Crow and still be "free" in Christ. The Bible doesn't demand the abolition of these oppressive structures but rather instructs believers to submit to them, live under them, and work within the system to advance the Kingdom of God -- see Romans 13.
4.11.2008 12:17am
Prufrock765 (mail):
I may be completely misremembering what I was taught in Intro to Philosophy, but isn't invoking the words of St. Paul, analytically speaking, about on a par with invoking the words of Don Rickles?
I realize that lots of people use St. Paul and the KJV as a moral guide, but a majority vote does not determine the truth or the analytical utility of a statement.
That said I agree generally with the conclusions of Mr Cramer, even if I can not accept all of his methods.
4.11.2008 10:08am
HenryH:
As was pointed it out in Religious Accommodations and the Elane Photography Case, I think this is clearly a violation of Elaine Huguenin's rights of religious freedom. Many ministers, as part of their profession, will perform wedding ceremonies for the public (as opposed to just for members of their congregation). Under the reasoning of the state of New Mexico, they would be required, on pain of damages liability, to perform any ceremony requested by a prospective couple.

Also, there is some discussion here about whether photographing a wedding is a "product" or an "artistic expression". It is clearly both but I think that somewhat misses the point. It wasn't, I believe, the sexual orientation of the couple that was the reason for refusing to photograph the wedding, it was the ceremony itself. That is, as Eugine has pointed out a few times, it is the product, not the customer that is objectionable to her. If a homosexual wanted her to photograph something unrelated to homosexuality and she refused, then perhaps it could be shown that her reason for refusal was based on the prospective client's sexual orientation. But in this case, it's the product (photographs of a same-sex ceremony), not the race, sex, sexual-orientation, religion, etc. of the client that caused her to choose not to take the job.

Someone asks if the maker of wedding cakes would have the same protection. It seems to me that if I refused to make a standard, white and pink wedding cake for you because of your sexual orientation or race, that would be one thing. If I refused to make a cake with sexually explicit decorations on it, that would be another. Of course, I'm not a baker, I'm a photographer, so maybe I see everything through that particular lens (so to speak).
4.11.2008 10:40am
David Schwartz (mail):
Loophole1998:
I don't have time to read all of the comments so excuse me if this is repetitive. (And also please excuse my tier-four education.) There are circumstances when the government can force you to speak in a certain way if you want to keep your job. Example: Federal judge orders clerk to write opinion saying "X". Clerk has two choices, write X or quit job. Instead of a clerk it could be a federal pamphlet writer in Pueblo Colorado. The point is that the writer has to express him or herself according to the government's rules if he or she wishes to remain employed. Nobody would say this is a first amendment violation, because the writer could simply quit his/her job and write whatever kind of opinions or pamphlets he/she wanted to write. Why can't the photographer quit her job if conforming to the government's anti-discrimination policy is too uncomfortable?
The Federal government's power to regulate its own employees is justifiably greater than its power to regulate those who are not its employees. The Federal government's power to control the expenditure of its own money is justifiably greater than its power to regulate how I spend my money.

When the government is an employer, it has the same right as any other employer to specify the job that is to be done, how it is to be done, and so on. The employee's recourse is always to quit. Libertarians will argue that the government doesn't have all of the rights of private employers, however, it is expected to act as an 'ideal' employer and to avoid discrimination and the like, as it acts in the name of all of its citizens.

Rights wouldn't be very useful if you couldn't trade them for things. The "right to freedom" would be a yoke if it meant you couldn't enter into an employment contract if you wanted to. Governments can offer reasonable and fair contracts to its citizens just as any other entity can.

The government can certainly say to Elane Photography that it will not employ them for its own events if they fail to offer their services to others on a non-discriminatory basis.
4.11.2008 11:46am
Jkoerner (mail):
I appears that many people here seem to confuse sexual orientation with race. The federal constitution actively prohibits discrimination based on race through the 13th-15th amendments but does nothing to directly prohibit discrimination based on sexual orientation. Thus, when the 1st amendment right to free speech comes up against the (non-existent) constitutional protections against homosexual discrimination, the 1st amendment wins. Examples that invoke refusing black patrons are red herrings; this case involves different principals.
4.11.2008 3:28pm
Jon Rowe (mail) (www):
Koerner,

You are confused by the fact that we are NOT discussing 14th Am. equal protection principles but statutorily enacted antidiscrimination laws applying in the private sector which categories cover a Hell of a lot more than just "race" and at many state and local levels (i.e., the one in question) cover "sexual orientation."
4.11.2008 5:46pm
HenryH:
Examples that invoke refusing black patrons are red herrings; this case involves different principals.


While I agree with this, would an event photographer (let's say it's an African American photographer) be compelled to photograph a Klan rally or face charges of race discrimination? Somehow it doesn't seem likely.
4.11.2008 5:48pm
Brian Macker (mail) (www):
Let me remind everyone that the hypothetical in this article was about a mixed race couple.

"Are you telling me that this picture isn't an artistic interpretation of events?"

What I said was it is as much about art as painting a house. I have a higher opinion of house painting than you do and I could certainly show you houses painted with "interpretation".

What you don't get out of those paintings or the wedding photographs you linked to is the message "Blacks shouldn't marry whites" or "Blacks are X". In fact there is no "message", "speech" or whatever there that couldn't also be "expressed" in a photo with a white bride and a black groom.

I'm sure most white couples wouldn't want their wedding photos to come back with racist interpretations of events plastered therein. It would be very hard for a wedding photographer to argue that his "style" required a racist message and a interracial couple would spoil his "art".
4.12.2008 4:12am
jkoerner (mail):
Jon Rowe,

What i said still stands. If a state-enacted antidiscrimination law comes in conflict with a FEDERAL constitutional right (1st amendment) then the statutory right will fail.

Discriminaton based on race may be less protected under the 1st amendment because the 13-15th amendments were passed afterward and could theoretically supercede it. However, discrimination based on sexual orientation is not protected under the federal constitution - so in a conflict with the 1st amendment free speech would win and invalidate any state created protections against such discriminaton.
4.12.2008 12:36pm
Jon Rowe (mail) (www):
Jkoerner,

What you said fails. Discrimination based on race is no more or less protected under the First Amendment than any other discrimination. If you want to get real strict, the original expected application of the 14th Amendment permits discrimination based on race but only forbids denying equal protection of whatever laws (i.e., murder, robbery, rape, contract, tort, etc.) happen to be on the books.

Moreover, nothing in the original expected application of the First Amendment prohibits government from making laws that inhibit the kind of "expressive association" that Boy Scouts of America v. Dale held protected.

In short, you are trying to use penumbral reasoning to advance your agenda, but prevent gay rights advocates from using the same to advance theirs.
4.12.2008 10:17pm
notalawyer:
David Schwartz: The Hebrew Bible's prohibition of racially mixed marriages sprang from the desire to keep Israel religiously, not ethnically, pure (e.g., Deuteronomy 7:3-4). Clayton is right when he says that "neither Jew nor Greek" in Galatians 3:28 sums up the Christian position, but even pre-Christian Israelite religion allowed marriages with foreigners if the foreigners converted to the worship of Yahweh. This is a main point of the book of Ruth.
4.12.2008 10:25pm
Jon Rowe (mail) (www):
Let me further add that even if one concedes that the 14th Amendment, properly understood, prohibits race discrimination, everyone concedes that it only had to do with public, i.e., government discrimination, NOT private discrimination. Therefore, if a private photographer wants to refuse to do an interracial wedding, everyone agrees the original meaning of the 14th Amendment wouldn't prohibit this. Such conduct is illegal only and entirely because of statutory law, the same type of law that at the state and local level forbids discrimination based on sexual orientation. Therefore all of the race v. sexual orientation analogies proffered thus far stand. At least they stand against jkoerner's objections.
4.13.2008 12:17am
Brian Macker (mail) (www):
So does anyone think that painting this house is less about art than artificially posing people for their wedding pictures?

Would it be acceptable for someone who runs a business painting houses in this fashion to reject a black customer because they thought a black person standing on the porch would distract from the "message" his art was sending.

How about those cupped hands with the rings the other guy linked to. Is it credible that a business that advertises itself as doing wedding photography should reject a black person because a pair of black hands cupping some wedding rings sends an artistic "vibe", "interpretation", or whatever the "F", that is not intended by the artist?

Could someone show me a wedding picture where the substitution of a white person by a black one would substantially change the artistic expression that is conveyed to the viewer of the picture?

Until such time I will continue to believe that Eugene is wrong on this issue. I think that one of the other commenters made a credible argument about a gay wedding not actually being a wedding in certain jurisdictions. I buy that argument. I don't buy this nonsense about taking wedding pictures of blacks or mixed race couples being about free speech, or art, or any credible reason for rejecting service.

If you think it's credible in this situation then why not in all other categories. What of a chef who considers himself to be in the high-end dining experience arena and trades on the fact that their work is, in fact, a personal expression.

Can such a chef decide that part of that high end experience is not having the food consumed by non-whites? Perhaps he views the consumption of his product by "n_____"s a violation of his "personal expression". A debasement of his art.

Perhaps he's just squirting mustard on his hot dogs in swirls. Is that sufficient reason for denying blacks entrance into his restaurant?

To paraphrase Eugene,
"And if that means that hot dog vendors can't be legally barred from choosing their subjects based on race, that's just an implication of the basic First Amendment principle of the speaker's right to choose what to say." In this case what the hot dog vendor is saying is "I hate n____, and their eating of my hot dogs violates my personal expression."
4.14.2008 1:06am
Randy R. (mail):
Clayton: "Homofascists do believe in legislating morality--now that they are in charge."

Darn it! Here we are in charge of everything, and we STILL can't get married in 49 states, can't serve openly in the military, have no spousal rights in most states, and have no laws protecting us in housing or employment in most states either.

I guess since we are only 1% of the population but we run all the cultural and governemtal institutions in America, we just don't have the time to force people like Clayton into perpetual slavery.....
4.14.2008 6:23pm